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[2012] ZAGPPHC 341
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Mail and Guardian Media Ltd and Others v Chipu, NO, Chairperson of the Refugee Appeal Board and Others (22645/2011) [2012] ZAGPPHC 341 (6 December 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT)
Case
Number: 22645/2011
DATE:06/12/2012
In
the matter between:
MAIL
AND GUARDIAN MEDIA
LIMITED
..........................................................
1
st
APPLICANT
INDEPENDENT
NEWSPAPER (PTY)
LTD
......................................................
2
nd
APPLICANT
MEDIA
24
LIMITED
…...........................................................................................
3
rd
APPLICANT
and
M.J.
CHIPU, N.O., CHAIRPERSON
OF
…........................................................
1
st
RESPONDENT
THE
REFUGEE APPEAL BOARD
KREJCIR,
RADOVAN
...........................................................................................
2
nd
RESPONDENT
MINISTER
OF HOME
AFFAIRS
...........................................................................
3
rd
RESPONDENT
JUDGMENT
Fabricius
J,
1.
The
Applicants herein seek the following relief:
“
1.
Reviewing and setting aside of the following decisions of the First
Respondent:
1.1
The decision taken on 11 February 2011
to refuse the First Applicant access to the appeal hearing before the
Refugee Appeal Board
(“RAB”), which has been brought by
the Second Respondent and which will take place on a date yet to be
determined (hereafter
referred to as “the appeal hearing");
1.2
The decision taken on 9 March 2011 to
refuse the Third Applicant access to the appeal hearing.
1.
Reviewing and setting aside the failure
of the First Respondent to make a decision in the application made by
the Second Applicant
for access to the appeal hearing.
2.
Ordering that two journalists employed
by each of the Applicants may be present at, and may report on the
appeal hearing.
3.
In the alternative to parts 1 and 3
above:
3.1
Declaring that
section 21(5)
of the
Refugees Act 130 of 1998
is unconstitutional to the extent that it
precludes members of the public or the media, in appropriate cases,
from attending and
reporting proceedings of the RAB.
3.2Declaring
that
section 21(5)
of the
Refugees Act 130 of 1998
is to read as
follows: “The confidentiality of asylum applications and
information contained therein must be
ensured
at all times, save that proceedings before the Appeal Board (which is
a term defined in the Act), the Appeal Board may on
application or of
its own accord allow any person or persons to attend a hearing and to
publish a report or reports on the hearing,
subject to any conditions
determined by the Board”.
3.3
Reviewing and setting aside the
decisions described in par. 1 and 2 above.
3.4Ordering
that, in the event of the Constitutional Court confirming the
declaration of invalidity referred to in par 4.1 above,
two
journalists employed by each of the Applicants may be present and may
report on the appeal hearing.
1.
Ordering the Third Respondent, and any
other of the Respondents who oppose this application, to pay the
Applicants’ costs.”
2
.
The
Second Respondent in this application then filed a conditional
counter- application which sought the following relief:
“
1.
It is declared that the Refugee Appeal Board Rules, published under
GN 1330 in Government Gazette 25470 of 26 September 2003
(the “Board
Rules”) are ultra vires and invalid.
2.
In the alternative to prayer 1 above, it
is declared that:
1.1
Rule 14 of the Board Rules in
inconsistent with the
Constitution,
inconsistent with the
Refugees Act, 130 of 1998
and consequently
ultra vires, and invalid to the extent that it entitles the Board to
admit any member of the public (including
any member of the media) to
a hearing of the Board other than the family or associates of the
asylum Applicant, government officials
whose presence is necessary
for the conduct of the hearing, representatives of the United Nations
High Commissioner for Refugees,
witnesses and legal representatives:
and 1.2to remedy the defect,
Rule 14(1)
is to be read as though it
provides as follows:
“
14.
Closed proceedings
(2)
The hearings of the Appeal Board will not be open to the public. The
Appeal Board may on application or of its own accord allow
the family
or associates of the
asvlum-seeker,
government officials whose presence is
necessary
to conduct the hearing, representatives of
the
United Nations High Commissioner for Refugees,
witnesses
and legal representatives to
attend
a hearing. ”
3.
Directing such parties opposing this
application to pay the costs of this application, such costs to be
paid jointly and severally.”
During
the hearing however paragraph 1 of these prayers was informally
amended so as to only refer to Rule 14(2) of the Board Rules.
3.
Refugees
Act 130 of 1998 (“the Act”)
The
preamble to the Act is important because much of it is again
contained in section 6 of the Act. It reads as follows:
“
Whereas
the Republic of South Africa has acceded to the 1951 Convention
Relating to the Status of Refugees, the 1967 Protocol Relating
to the
Status of Refugees and the 1969 Organisation of African Unity
Convention Governing the Specific Aspects of Refugee Problems
in
Africa as well as other human rights instruments, and has in so
doing, assumed certain obligations to receive and treat in its
territory refugees in accordance with the standards and principles
established in international law. ”
Chapter
1 of the Act deals with its interpretation, application and
administration. It also contains a definitions section. An “asylum
seeker” means a person who is seeking recognition as a refugee
in the Republic. Section 2 is to the effect that a person
may not be
refused entry into the Republic if the result is that he or she is
compelled to return or remain in the country where
he or she may be
subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership
of a particular social
group. Section 4 provides for exclusion from refugee status if,
amongst others, there is reason to believe
that the person has
committed a crime which is not of a political nature and which, if
committed in the Republic, would be punishable
by imprisonment.
Section 6 deals with interpretation, application and administration
of the Act and it is convenient to quote this:
“Section 6(1)
This Act must be interpreted and applied with due regard to-
(a)
. the
Convention Relating to the Status of Refugees (UN, 1951);
(b)
.
the Protocol Relating to the Status of Refugees (UN, 1967);
(c)
. the
OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa (OAU, 1969);
(d)
. the
Universal Declaration of Human Rights (UN, 1948); and
(e)
. any
other relevant convention or international agreement to which the
Republic is or becomes a party.
”
Regard
must also be had to section 232 and 233 of the Constitution.
4.
Chapter
2 deals with Refugee Reception Offices, Standing Committee for
Refugee Affairs and the Refugee Appeal Board. The Refugee
Appeal
Board is established by section 12 of the Act which states that it
must function without any bias, and must be independent
According to
section 13 the members are appointed with due regard to their
suitability to serve as a member by virtue of his or
her experience,
qualifications and expertise, and the person’s capability to
perform the functions of the Appeal Board properly.
One of the
members of this Board must be legally qualified. Section 14 deals
with the powers and duties of this Board which must
hear and
determine any question of law referred to it in terms of the Act, and
also hears and determines any appeal so lodged in
terms of the Act.
According to section 14(2) the Board may determine its own practice
and make its own rules. These rules must
be published in the
Government Gazette.
5.
Chapter
3 deals with applications for asylum, how they must be made and to
whom presented, which would initially be the Refugee
Reception
Officer. For present purposes section 21(5) is important and it reads
as follows: “The confidentiality of asylum
applications and the
information contained therein must be ensured at all times”.
Section 24 deals with the relevant decision
regarding an application
for asylum which is made by the Refugee Status Determination Officer.
He may request information or clarification
from an applicant or the
Refugee Reception Officer. He may also consult with a representative
from the United Nations High Commissioner
for Refugees on specified
matters and may, with the permission of the asylum seeker, provide
this representative with such information
as may be requested.
Section 24(2) also provides that when considering an application the
Refugee Status Determination Officer
must have due regard to the
rights as set out in section 33 of the Constitution, and in
particular must also ensure that the applicant
fully understands the
procedures, his or her rights and responsibilities, and the evidence
presented. After the conclusion of such
hearing he may then grant
asylum, or reject the application as manifestly unfounded, abusive or
fraudulent, or reject it as unfounded,
but may also refer any
question of law to the Standing Committee.
6
.
Chapter
4 of the Act deals with reviews and appeals, and for present purposes
section 26 is important inasmuch as it makes provision
for an appeal
to be lodged to the RAB, which may, after hearing an appeal, confirm,
set
aside or substitute any decision taken by a Refugee Status
Determination Officer in terms of s24(3). Before reaching a decision
such Board may also invite the United Nations representative to make
submissions, request the attendance of any person who, in
its
opinion, is in a position to provide the Board with relevant
information, of its own accord make further inquiries or
investigation,
and also request the applicant to appear before it. It
must allow legal representation at the request of such applicant.
In
my view it is clear, and none of the parties held a different view,
that such appeal is an appeal in the wide sense of the word
i.e. it
is a hearing de novo. See: Tantoush v Refugee Appeal Board
[2007] ZAGPHC 191
;
2008 (1)
SA 232
(T) at par 92.
7.
Chapter
5 of the Act deals with Rights and obligations of refugees. Section
27(b) is important in the present context and states
that: “a
refugee enjoys full legal protection, which includes the rights set
out in chapter 2 of the Constitution and the
right to remain in the
Republic in accordance with the provisions of this Act”.
Chapter 2 of the Constitution of the Republic
contains the Bill of
Rights (sections 7-39). Section 28(2) provides for the applicability
of section 33 of the Constitution before
a refugee may be removed
from the Republic on certain grounds. It is therefore clear from
section 24(2) and also s28(2) that an
applicant is entitled to
administrative justice, the relevant principles of which are now
contained in the Promotion of Administrative
Justice Act 3 of 2000
(“PAJA”
).
8.
The
Board Rules;
On
26 September 2003 under Government Notice 1330 in Government Gazette
25470, the Board purported to make the Refugee Appeal Board
Rules.
Rule 14 is of particular interest in the present proceedings:
“
14.
Closed proceedings
(1)
The
hearings of the Appeal Board will not be open to the public. The
Appeal Board may on application or on its own accord allow
any person
or persons to attend a hearing.
(2)
Where
such persons are permitted to attend the hearing in terms of Rule
14(1) above, the Appeal board may nonetheless exclude any
person
behaving in a manner likely to interfere with the proper conduct of
the proceedings.
”
I
say “purported to make”,
because it is common cause that the following occurred: it was Second
Respondent’s submission
that Rule 14 did not confer a
discretion on the Board to permit any member of the public, including
journalist, to attend a Board
hearing. Should I however find against
them on that issue, he contended that Rule 14 was in any event '‘ab
initio void”.
The reason for that contention emanates from the
fact that after the
Refugees Act had
been promulgated, and put into
force on 1 April 2000, the
Immigration Act 13 of 2002
was propagated
on 31 May 2002. In
section 54
of this Act it was provided that the
laws mentioned in Schedule 3 were repealed. Schedule 3 and
particularly the 3
rd
column thereof, contained far-reaching amendments to the
Refugees
Act, inasmuch
as it abolished the Refugees Appeal Board, repealed
sections 12
-
14
of the
Refugees Act, and
consequently deleted
reference to “Appeal Board” in other parts of the
Refugees Act. These
provisions were substituted with provisions
providing for immigration courts. The
Immigration Act, including
section 54
and Schedule 3, were put into force by the President by
proclamation on 12 March 2003. This meant that as from 12 March 2003,
the
Board did not exist but, as I have said, purported to make the
relevant Board Rules on 26 September 2003. Thereafter the immigration
Act was in turn amended by the
Immigration Amendment Act 19 of 2004
,
which was promulgated on 18 October 2004 and put into force by
proclamation on 1 July 2005. One of its purposes was to repeal
the
provision that provided for immigration courts. It did not amend
section 54
of the
Immigration Act but
substituted a new Schedule for
the Schedule 3 in the original
Immigration Act. The
new Schedule
contained no reference to the
Refugees Act. The
result was, according
to Second Respondent, that the Board did not exist as a legal entity
between 12 March 2003 and 1 July 2005,
and where it purported to make
Rules during that period, such was ab initio void, and fell to be set
aside. The Board did not exist
between 12 March 2003 and 1 July 2005,
and neither did any empowering provision under which Rules could have
been made. It is obvious
that all public power must be exercised
lawfully, and, where the “law-maker” (the Board) did not
exist, it is in my
view difficult to imagine under which
circumstances it could have made valid rules. The principle of
legality would not countenance
that. I therefore fail to understand
why Counsel for Second Respondent informally amended the conditional
counter application to
refer to
Rule 14(2)
only.
See:
Fedsure Life Assurance Limited v Greater Johannesburg Transitional
Metropolitan Council
1991 (1) SA 374
(CC) at par 58,
and
Bula v Minister of Home Affairs
2012 (4) SA 560
(SCA) at par 79.
De
Kock and Others v Van Rooyen
2005 (1) SA 1
(SCA) at par 23-25.
9.
The
Rule of Law is obviously a Constitutional matter, and despite the
fact that the Second Respondent’s counter claim was
conditional
on the findings that
section 21(5)
was unconstitutional, I am in my
view at liberty within the ambit of sections 169 and 172 of the
Constitution, to declare the purported
rules to be of no force and
effect, but particularly Rule 14 (2), and also the 2
nd
sentence of Rule 14 (1), which is in any event ultra vires section
21(5) of the Act. I will return to this topic when I deal with
the
interpretation of section 21(5) of the Act. In any event, it is clear
that a rule cannot be used to interpret an Act See: Moodley
v
Minister of Education and Culture
,
House
of Delegates
1989 (3) SA 221
(AD) at 233 E~F, and Hamilton-Brown v
Chief Registrar of Deeds 1968 vol
4 SA 735
(T) at 737 D, although
this dealt with a particular Act and regulations made there-under,
the principle remains the same, namely:
“It is not, however,
legitimate to treat the Act and the regulations made thereunder as a
single piece of legislation, and
to use the latter as an aid to the
interpretation of the former. The section in the Act must be
interpreted before the regulation
is looked at and, if the regulation
purports to vary the section as so interpreted, it is ultra vires and
void. It cannot be used
to cut-down or enlarge the meaning of the
section...”.
10.
The
interpretation of section 21(5) (“the confidentiality of asylum
applications and the information
contained therein must be ensured at
all
times”).
Mr.
Cockreli SC on behalf the Applicants preferred to deviate somewhat
from his written heads of argument, by dealing with the review
application in the context of the provisions of Rule 14 (1). In the
heads of argument the relevant constitutional framework was
dealt
with first, and Mr. Marcus SC, correctly in my view, adopted the
approach that the starting point was the interpretation
of section
21(5) of the Act in the proper context. In law, context is everything
(in life also, but I must not be read to declare
that law and life
are two separate concepts).
See:
Aktiebolaget Hassle and Another v Triomed (Pty) Ltd
2003 (1) SA 155
(SCA) at 157 , where Nugent JA said that in law this was so, when it
comes to construing the language used in documents, whether
the
document be a statute, or a contract, or something else. The
Constitutional Court has also said that the overall context of
an Act
is important in an interpretive exercise. See: SA Liquor Trades
Association v Gauteng Liquor Board
2009 (1) SA 565
at par 25 and 33.
Apart from the context of any given statute, or section thereof, a
court must of course interpret legislation
as per the provisions of
section 39 (2) of the Constitution. Interpretation seeks to give
effect to the object or purpose of legislation,
and involves an
inquiry into the intention of the legislature. It is concerned with
the meaning of words without imposing a view
of what the policy or
object of legislation is or should be. See: Mankayi v Anglo Gold
Ashanti
2010 (5) SA 137
(SCA) at par 23 and 25,
and
SAA v Aviation Union of South Africa
2011 (3) SA 148
(SCA) at 155 to
158. In that decision it was made clear that whilst recognising the
need to give effect to the object and purpose
of legislation, it was
not the function of a court to do violence to the language of a
statute. In any event, the ordinary meaning
of words used in a
statute or in a section must be interpreted, and in interpreting
statutes within the context of the Constitution,
will not require the
distortion of language so as to extract a meaning beyond that which
the words can reasonably bear. It does,
however, require that the
language used be interpreted as far as possible, and without undue
strain, so as to favour compliance
with the Constitution. This
in-turn will often necessitate close attention to the socio-economic
and institutional context in which
a provision under examination
functions. See: South African Police Service v Public Services
Association
2007 (3) SA 521
(CC) at par 20.
11
.
Applicants,
in the context of section 21(5) of the Act submitted that it
infringed upon the rights contained in section 16(1) of
the
Constitution, which deals with freedom of expression, the freedom of
the press and freedom to receive or impart information
or ideas. With
reference to a number of decisions of the Constitutional Court it was
submitted that freedom of expression lies
at the heart of democracy,
and that individuals in society needed to be able to hear, form and
express opinions and views freely
on a wide range of matters. The
media had a particular role to play in protecting the right, and were
in fact key agents in ensuring
that the provisions of s16(1) of the
Constitution were complied with, enforced and respected.
See:
South African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others
2007 (1) SA 5234
(CC) at par 23;
South
African National Defence Union v Minister of Defence and Another
1999
(4) SA 469 (CC) at par 7; S v
Mamabolo (E-TV and Others intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at par
37. Applicants furthermore relied on the principle of “open
justice” which flows from the constitutional
principles of
freedom of expression and accountability. In S v Mamabolo supra at
par 28 and29 the following was said in this context:
“...this
openness seeks to ensure that the citizenry knows what is happening,
such knowledge in-turn being a means towards
the next objective: so
that the people can discuss, endorse, criticise, applaud or castigate
the conduct of their courts and, ultimately
such free and frank
debate about judicial proceedings serves more than one vital public
purpose. Self-evidently such informed and
vocal public scrutiny
promotes impartiality, accessibility and effectiveness, free of the
more important aspirational attributes
prescribed for the judiciary
by the Constitution...”. I was referred to a decision of the
House of Lords in Scoff v Scott
[1913] (AC) 417 at 447: “Publicity
is the very soul of justice. It is the keenest spur to exertion and
the surety of all
guards against improbity. It keeps a Judge himself,
while judging, under trial.” I must say at this stage that
neither I
nor Mr. Marcus SC on behalf of the Second Respondent, nor
Mr. Bofilatos SC on behalf of the First and Third Respondents had any
problems with these submissions, or needed to be converted in that
regard. It was also pointed out that the open justice concept
was
applied to many other public bodies such as commissions of enquiry,
misconduct proceedings of various professional councils,
liquidation
enquiries ect. The result was that the goal of the present
application was to advance two democratic imperatives, namely
the
goal of ensuring that the public has access to information which
engage the public interest, and the need to allow scrutiny
of the
decision-making process when it would be in the public interest to do
so. Accordingly the submission was that the public
interest in
particular plays a core role in the analysis in terms of section 16
of the Constitution, and particularly, the analysis
of whether any
limitation of the rights protected by section 16 was justified.
12.
Section
21(5) is in my view clear from a linguistic point of view. The
confidentiality of asylum applications and information contained
therein must be ensured at all times. “All times" does in
my view not mean “sometimes”. “Confidential”
means “not intended for public knowledge" (see Shorter
Oxford English Dictionary at pg 487). This left the question
what “at
all times” meant? The suggestion was that confidentiality only
applied to the initial stages of any asylum
application, and that in
line with the injunction that a court must interpret a section that
would permit constitutionality and
in the present context comply with
the provisions of section 16(1) of the Constitution, it meant in the
present instance that the
Board ought to have a discretion to allow
the media to be present during the relevant appeal hearing of Second
Respondent. Applicants
made great play in the founding affidavit and
again in their reply, that the Second Respondent was a public figure
at his own instance.
He gave interviews, sought interviews and
attracted attention to his way of life, apart from the evidence that
he gave in previous
court hearings. Whilst he contended that
international law required asylum applications to be kept
confidential for a number of
reasons which I will deal with in a
moment, it was Applicants' case that access to the Appeal Board
hearing was justified on the
facts of this case. Second Respondent
contended, not surprisingly, that it could never be permitted to
allow media access to a
refuge appeal, whatever the facts and
circumstances of the case. Applicants in turn submitted that this
absolute position was no
more sustainable than would be an absolutist
claim by the media of the right of access to every refugee appeal. It
was not Applicants’
case that they should have access to all
refugee appeals, but the core question in their view was the
following: “Does the
Constitution permit an absolute rule that
the RAB may never make know any information relating to an
application for refugee status
and may never allow public access to
an appeal?” Applicants say that a blanket ban on access to
refugee appeal hearings would
be inconsistent with the Constitution
for another reason, and that would be that it would be irrational.
The purpose of an appeal
hearing was to establish the truth, and a
secret hearing undermined the ability of the Board to establish the
truth or conversely
open hearings facilitated the establishment of
the truth. A witness who knew that his evidence would be open to
scrutiny by others
would be less likely to submit untruthful
evidence. A ban on access therefore facilitated dishonesty. The
conclusion was that a
blanket statutory secrecy in respect of refugee
appeals was inconsistent with the Constitution and accordingly
invalid.
13.
I
have mentioned that it was Applicants’ case that the
confidentiality aspect contained in section 21 (5) of the Act only
applied to the initial stages of the particular application process.
On behalf of all of the Respondents it was contended that
such
argument lost sight of the express wording of section 21(5), the
context of refugee law generally as well as its statutory
context in
South Africa. In 1996 South Africa acceded to the United Nations
Convention relating to the status of refugees of 1951
(the “Refugees’
Convention”), and its 1967 Protocol. In order to give effect to
these international obligations,
South Africa enacted the
Refugees
Act. The
applicable treaties were therefore incorporated into
domestic law.
See:
Tantoush supra at par 61.
The
purpose of refugee law, and in particular the Refugees Convention and
the
Refugees Act is
to protect persons who are in danger of, or
vulnerable to, persecution on the specified grounds. In this regard
the purpose of
refugee law and the confidentiality obligations
imposed by such, is closely tied to the protection and promotion of
the constitutional
rights {inter alia) to human dignity, life,
freedom and security of the person, privacy and just administrative
action. It was
against the backdrop of these rights that section
21(5) of the Refugee Act must be interpreted to give affect to
confidentiality
at all stages of the asylum application process. I
agree with that approach.
The
Supreme Court of Appeal has emphasised in this context that refusing
a refugee entry to this country, thereby exposing her or
him to the
risk of persecution or physical violence in his home country, is in
conflict with the fundamental values of the Constitution.
See:
Abdi and Another v Minister of Home Affairs and Others
2011 (3)
SA
37
(SCA) at par 27. I have mentioned the relevant constitutional
rights being contained in sections 10,11,12,14 and 33 of the
Constitution
(and PAJA). It must be remembered that in the Abdi
decision (at par 22), the SCA held that the words of the Act mirror
those of
the UN Convention and the OAU Convention of 1969. Further,
the Act’s provisions are in accordance with international law
and practice as evidence by decisions of the European Court of Human
Rights, (par 24). It is also abundantly clear from the wording
from
section 6 of the Act itself that it must be interpreted and applied
with due regard to inter alia the Refugees Convention,
the Protocol,
the Universal Declaration of Human Rights and “any other
relevant convention or international agreement to
which the Republic
is or becomes a party”. Section 6 can therefore not be
interpreted in isolation, and not only with reference
to its own
wording, but as I have said, within its statutory context and in
order to give effect to the purposes of the Act generally.
I have
mentioned the relevant authorities which support this approach.
Respondents also argued that it was important to understand
the
purpose and function of confidentiality in the context of refugee law
as interpreted and practiced internationally. The South
African
Refugees Act, as
the Supreme Court of Appeal has said, is in
accordance with international law and practice. One must therefore
read the words contained
in
section 21(5)
in the context of the Act
as a whole, and in the light of all relevant circumstances. See:
Natal Joint Municipal Pension Fund v
Ndomeni Municipality
2012 (4) SA
593
(SCA) at par 24 and 26.
14.
Respondents
quite correctly submitted that it was important to understand the
purpose and function of confidentiality in the context
of refugee law
as interpreted and practiced internationally. Confidentiality of
proceedings at every stage of asylum proceedings
was a feature of
refugee law in virtually every major jurisdiction. The reasons for
that were set out in the Handbook and Guidelines
on Procedures and
Criteria for Determining Refugee Status published under the auspices
of the United Nations High Commissioner
for Refugees. Confidentiality
was important so that the applicant could fully explain his case,
opinions and feelings, discuss
the relevant circumstances, his trauma
and fears, whilst being reassured that confidentiality was respected
so as to ensure the
required openness on one hand, and the safety of
the applicant, his family and witnesses on the other hand. Reference
was also
made to the United Nations advisory opinion to the Japanese
Government of 31 March 2005 which emphasised the importance of
confidentiality
at all stages of the relevant proceedings, including
all administrative and judicial review proceedings. For this reason
confidentiality
had to apply “at all times" as per section
21(5) and accordingly to the appeal process before the Refugee Board.
In
the context of section 16(1) of the Constitution, Respondents
briefly argued that it was wrong to transplant the "open
justice"
principle to the present Appeal Board hearing which is
a body established for a particular purpose in line with
international law
and obligations. In their heads of argument the
Second Respondent’s counsel “assumed” that section
21(5) of the
Act constituted a limitation of section 16 of the
Constitution and then dealt with the limitation clause provided for
by section
36(b) of the Constitution. During argument however Mr.
Marcus SC agreed that the provisions of section 21(5) of the Act
infringed
the rights contained in section 16(1) of the Constitution,
and then proceeded to deal with the limitations analysis.
15.
In
my view the provisions of section 21(5) are absolute in its content
and does not give the Board any discretion to allow the press
access
in so-called appropriate cases. It therefore cannot also co-exist
with the second sentence of Rule 14(1), that I have already
referred
to.
16.
I
therefore declare that section 21(5) of the Refugees Act 130 of 1989
infringes upon the freedom of the press and other media and
the
freedom to receive or impart information or ideas as provided for by
the provisions of section 16(1) of the Constitution.
17.
Limitation
of Rights
It
is convenient to refer to this provision. Section 36 of the
Constitution provides:
“
Limitation
of Rights
(1)
The rights in the Bill of Rights may be limited only in terms of
general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taken into account all relevant
factors including-
a.
The nature of the right:
b.
the importance of the purpose of the
limitation;
c.
the nature and extent of the limitation;
d.
the relation between the limitation and
its purpose;
e.
less restrictive means to achieve the
purpose.”
Before
I deal with these limitation considerations, I deem it necessary to
refer to certain of the factual allegations contained
in the
affidavits before me. Applicants classified the Second Respondent as
a public figure, and they gave numerous facts emanating
from his
evidence in his bail application and the extradition proceedings.
They accordingly alleged that most facts relating to
his unlawful
activities both in South Africa and in other countries are already in
the public domain. They do not rely on the truth
of those allegations
or the accuracy of certain media reports which were attached to the
founding affidavit, but say that the media
reports show the nature of
the speculation that is currently in the public domain about the
Second Respondent. They submitted that
it was clearly of manifest
public interest to know the grounds on which he is refused or granted
an asylum-seeker permit. They
say that at the very least the
following facts cannot be denied:
17.1
He is a man with serious allegations of
criminality currently being levelled against him. Some of these
allegations involve alleged
links with a person involved in taw
enforcement at a senior level;
17.2
he is also a man who alleges that he
faces a political conspiracy in the Czech Republic as a result of
supporting the election campaign
of a former Prime Minister. Other
arguments were made in the founding affidavit concerning the
importance of the freedom of the
press and the right of the public to
be fully informed, an analysis of the Refugee Act itself, and various
other submissions relating
to the principles of open justice and
freedom of expression. Inasmuch as the present section 21 (5) imposes
a blanket ban on public
access or media access, Applicants accept
that there may be instances where it would be inappropriate for
access to be granted
to an RAB appeal. It is for that reason that RAB
is vested with a discretion whether to grant access, or ought to have
that discretion.
They also accept that the principles of open justice
and freedom of expression are not the only important constitutional
principles
that may be taken into account by the RAB when deciding
whether to grant access. They submit however that on the facts of
this
case there are no counter-veiling principles which will have the
affect of out-weighing the importance of open justice, and the
right
of members of the public to receive information in the public
interest. There can be no material privacy or dignity interest
of
Second Respondent to keep the hearing closed, since information which
potentially limits his rights to dignity and privacy is
already
extensively in the public domain. Full details were given in this
context which are not necessary to repeat herein, but
which emanate
from the previous court proceedings. Applicants then dealt with the
remedy that ought to be granted in the context
of their prayers
sought, on the assumption that the reading-in required by prayer 4.2
was not appropriate. Having regard to the
legislation pertaining to
refugees, both in South Africa and in other countries, I am of the
view that the reading-in suggested
by prayer 4.2 of the notice of
motion is not appropriate on the facts. A court must be careful not
to be too incisive in this regard,
and it must endeavour to be as
faithful as possible to the legislative scheme within the constraints
of the Constitution. See:
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
2000
(2) SA 1
(CC) at par 75.1 also
need to keep in mind the principle of separation of powers, which
requires a court to pay appropriate respect
to the proper role of the
legislative arm of Government. I accept that confidentiality is a
very important purpose of any refugee
legislation and on that basis
the suggested reading-in would be inappropriate. It is in any event
inappropriate where it is sought
on the basis of the facts of one
particular refugee only, legislation is aimed at the, majority of
particular cases, or classes,
or affected persons, and generally not
at isolated or exceptional cases.
See:
Minister of Finance and Another v Van Heerden 2004
(6)
SA
121 (CC) at par 38
-
41.
18.
Aspects
of Second Respondent’s answering affidavit:
Second
Respondent set out a legal argument in his answering affidavit which,
in constitutional litigation is not only acceptable,
but a
requirement inasmuch as it leads to a proper ventilation of relevant
issues. For that reason he proposed an interpretation
of the Act in
the light of the preamble to the Act, the provisions of section 6,
customary international law and legislation in
comparable
jurisdictions. He also dealt with the limitations exercise that
section 36 of the Constitution required. What is important
at the
moment are the following allegations having regard to the purpose of
refugee legislation and confidentiality requirements,
and he referred
to a number of interlocking policy considerations:
18.1
Confidentiality serves to protect the
life and liberty not only of the asylum seeker, but also of his and
her family and associates
(some of whom may have been instrumental in
aiding the asylum seeker to flee the country of origin or in
supporting the asylum
seeker in the receiving country) as well as
witnesses;
18.2
it is essential to the integrity of the
asylum process;
18.3
it encourages asylum seekers to come
forward and to furnish full and honest accounts of their asylum
claims;
18.4
it is necessary in order to preserve the
fairness of the proceedings;
18.5
it is necessary to balance the
requirements of diplomatic comity against the need to grant refugee
status to persons genuinely in
need of protection.
He
then dealt with those considerations in the answering affidavit, many
of which were then repeated and expanded upon in the Second
Respondent’s heads of argument, and argument in court, with
which the First and Third Respondents associated themselves with.
It
is noteworthy what the Applicants said in their replying affidavit in
respect of these alleged interlocking policy considerations.
They say
that none of those policy considerations justifies the contention
that the proceedings must be closed in all cases. They
say that none
of these policy considerations meets the Applicants’ case in
this regard. They demonstrate that in “some,
or even many, or
even in most cases” (I underline), it will be appropriate to
require confidentiality. They do not, however,
justify an absolute
blanket ban on public access to the hearings without exception. It is
also significant that they continue to
say that it may be that in the
majority of cases the rights and interests of the Applicant to
confidentiality outweigh the public
interest in openness. Indeed,
this flows from the fact that the majority of applicants for asylum
are unknown to the public. However,
as this case shows, there may
occasionally be instances where the applicant has such a public
profile, and his application raises
such issues of national
importance, that openness is required. Requiring a blanket ban
prevents the RAB, in such a case, from giving
effect to what the
Constitution requires. Having read all of the allegations contained
in the affidavits as well as the confidential
affidavits handed to me
in a separate file, I have failed to discover “such issues of
national importance” that the
Applicants refer to (par 14 of
the replying affidavit), i assume for present purposes that there is
a public interest in the outcome
of the appeal as opposed to mere
public curiosity, in the light of the facts that were presented in
the Second Respondent’s
bail application and the extradition
hearing. Certain of those facts may or may not be in the public
interest, but this is a far
cry from saying that one is dealing with
issues of “national importance”. The relevance of
Applicants’ concession
set out herein above will become
apparent when I deal with the limitation factors. The reference to
“national importance”
seems to mean the following to
Applicants, and I deem it appropriate to quote from the replying
affidavit: "29.1 ...it is
the Applicants’ contention that
the allegations about alleged criminality and whether Mr. Krejcir
should be accorded refugee
status are inexplicably linked. The
allegations in the public domain suggest that Mr. Krejcir is involved
in serious organised
crime. Mr. Krejcir’s version is that he is
an honest business man who is being persecuted. These versions are
inconsistent,
and the information which will be ventilated in the RAB
proceedings will relate directly to the question of which version is
true.
Given the extremely serious allegations that have been made
against Mr. Krejcir, it is in the public interest for these issues to
be ventilated in the public eye. The public has a right to know the
reasons for the outcome of Mr. Krejcir’s appeal, regardless
what it is, and also have a right to witness the adjudication of that
appeal.”
I
may add that it was reported in the media some weeks ago that all
criminal charges against Mr. Krejcir had been withdrawn. The
allegations contained in the Applicants’ replying affidavit
are, as I have said, then reflected in their heads of argument
where
it is said that it is not Applicants’ case that they should
have access to all refugee appeals, but rather that access
is
justified on the facts of this case.
19.
Section
36(1 Ha) of the Limitation Clause;
The
nature of the Right:
The
parties to these proceedings agree that the right to freedom of
expression is fundamental to a constitutional democracy. I also
do
not need to be converted. It is also so that persons must be able to
see how justice is done; and, as the Applicants have asserted,
the
closer particular speech is located to the core values of the right
to freedom of expression, the higher the thresh- hold of
justification. In other words, the more the reception of particular
information is in the public interest, the harder it will be
to
justify limiting its dissemination.
See:
Reuck v Director of Public Prosecutions
,
Witwatersrand Local Division
[2003] ZACC 19
;
2004 (1) SA
406
(CC). There are, as the Constitution itseif makes it clear,
limitations to the right to freedom of expression, and these are
contained
in section 16(2). There are other accepted limitations as
well, and in Independent Newspapers (Pty) Ltd v Minister for
Intelligent
Services
;
In
re Masetla v President of the Republic of South Africa
2008 (5) SA 31
(CC) at par 43 - 44 Moseneke DCJ put the position as follows: [43] “I
am, however, unable to agree with the submission that
a restriction
placed on public access to proceedings is only permissible as an
exceptional occurrence and that the party seeking
to restrict the
court record bears a true onus of demonstrating that the restriction
is justifiable. The logical consequence of
this stance is that all
court records may not be restricted, except in exceptional
circumstances, by a court order after formal
application, on notice
to interested parties and after a hearing in an open court. In other
words, I accept that the default position
is one of openness. My
difficulty arises in defining the circumstances in which that default
position does not apply. As will become
apparent later, I cannot
accept the argument that the default position may only be disturbed
in exceptional circumstances.
[44]
The “exceptional circumstances” standard advanced is
inconsistent with the design of our Constitution and the
jurisprudence of this court on several counts. The better approach, I
think, is to recognise that the cluster of rights that enjoins
open
justice derive from the Bill of Rights. These Rights are individually
and collectively, like all entrenched rights, not absolute.
They may
be limited by a law of general application provided the limitation is
reasonable and justifiable. It is not uncommon that
legislation and
the common law in this country and elsewhere, in open and democratic
societies, limits open court hearings when
fair trial rights or
dignity or rights of a child or rights of other vulnerable groups are
implicated.”
20
.
The
Respondents say that asylum-seekers are such vulnerable group, and of
course the Constitutional Court has held so as well in
Union of
Refugee Women and Others v Director
-
Private Security Industry Regulatory
Authority and Others
2007 (4) SA 395
(CC) at par 28-29 where the
following was said: “Refugees are unquestionably a vulnerable
group in our society and their
plight calls for compassion. As
pointed out by the Applicants, the facts that persons such as the
Applicants are refugees are normally
due to events over which they
have no control. They have been forced to flee their homes as a
result of persecution, human rights
violations and conflict. Very
often they, or those close to them, have been victims of violence on
the basis of very personal attributes
such as ethnicity or religion.
Apparent to these experiences is the further trauma associated with
displacement to a foreign country.
The condition of being a refugee
has thus been described as implying “a special vulnerability,
since refugees are by definition
persons in flight from the threat of
serious human rights abuse””. Other important cases
in
the context of the limit of the right to
freedom of expression are:
S
v
Mamabolo supra at par 41 and Laugh it off Promotions CCv SAB
International (Finance)
[2005] ZACC 7
;
2006 (1) SA 144
(CC) at par 47 where it was
stated that the right to free expression in our Constitution is
neither paramount over other guaranteed
rights, nor limitless.
21
.
There
are many other well recognised instances in our law where the right
to : "open justice" is outweighed by superior
interests,
some of which are the following:
21.1
Proceedings involving children who are
accused or witnesses in criminal proceedings;
21.2
divorce proceedings;
21.3
protection of the identities of rape
victims and other victims of sexual violence;
21.4
matters where there is a likelihood that
harm might result to a witness who testifies at open proceedings;
21.5
various
other situations in which an exclusion of the media is needed to
preserve the proper administration of justice.
The
Canadian Charter of Rights and Freedoms is akin to our chapter 2 of
the Constitution. It also guarantees the rights and freedoms
set out
in it subject only to reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
In the
context of a case involving a ban on publication of the identity of a
complainant in a sexual case, the Supreme Court of
Canada in Canadian
News Papers Company v Canada (A-G)
[1988] 2 SCR 122
held that the
relevant section of the Criminal Code which contained the relevant
ban on publication was introduced to remedy a
situation where a
victim of a sexual assault did not report this offence for fear of
treatment by either the police or prosecutors,
or fear of trial
procedures or fear of publicity or embarrassment. It was held that
while freedom of the press was an important
value in a democratic
society which should not be hampered lightly, it must be recognised
that the limits opposed by the particular
section in the Criminal
Code on the media’s rights were minimal.
22
.
The
right to freedom of expression and the “open justice principle”
does usually weigh in favour of opening-up proceedings
like those in
front of the RAB, however, there are a number of counter veiling
rights and interests which serve to justify the
exclusion set out in
section 21(5).
23.
The
Importance of the Purpose of the Limitation:
It
is clear that the relevant limitation is prevalent in the refugee
legislation and practice of other open and democratic societies.
The
purpose of the limitation of the right is set out in Second
Respondent’s main answering affidavit, and I have referred
thereto as well as the Applicants’ reply. I regard the
integrity of the asylum system as a crucial feature. Two particular
important examples suffice in this context:
23.1
An asylum
seeker can often only substantiate “well-founded fear of
persecution” by divulging information to the adjudicator
of the
asylum
claim, or leading the evidence of witnesses, which carries the risk a
threat to life or liberty to the asylum seeker, family
or associates
or witnesses. If the confidentiality of the proceedings cannot be
guaranteed, such information will not be presented
or evidence will
not be led. This inhibits the asylum seeker from airing his or her
case to the fullest extent possible. It could
of course, in some
cases, prevent the asylum claim from succeeding;
23.2
asylum proceedings are particularly and
peculiarly susceptible to diplomatic pressure from the country of
origin. Such interference
deeply compromises the integrity of the
asylum adjudication. It may sway the adjudicator to reject a
well-founded asylum claim
on spurious grounds in order to preserve
the diplomatic relationship.
A
blanket ban on access by the general public is therefore justified in
my view. In their replying affidavits the Applicants have
admitted
that in most cases a blanket ban is justifiable, but have insisted
that the facts of this case demand access to the appeal
hearing. I do
not agree that this is so, and in any event the integrity of the
asylum system, the safety of witnesses, relatives
and associates, the
fact that the refugee might be unwilling or unable to return to his
or her country of origin because of circumstances
subsequent to his
flight, the asylum-seekers privacy and dignity interests and the
general fairness of the asylum-hearing outweigh
the limited interests
of the Applicants herein.
24.
The
Nature and Extent of the Limitations:
The
nature of the limitation is a complete ban on access of the general
public to the relevant appeal proceedings. The confidentiality
aspect
pervades the entire proceedings, from lodgement of the application
until after the conclusion of an appeal or review. This
is therefore
a limitation of the “open justice” principle which must
however also be seen in the relevant context.
Whatever crimes the
Second Respondent may have committed in South Africa are also
irrelevant, having regard to the provisions of
section 4(1 )(b) of
the Refugees Act: only crimes committed prior to entry of the country
of refuge are relevant. I have already
mentioned that according to
various newspaper reports of some weeks ago, all criminal charges
were withdrawn against the Second
Respondent. For obvious reasons I
do not know what the further intention of the prosecuting authority
is. If any acts committed
in South Africa are relevant, closing the
hearing has virtually no impact at all on the right and opportunity
of the media to report
on such. They would be able to attend any
relevant criminal court hearing. If there is indeed a public interest
to know the grounds
upon which the Second Respondent will be granted
or not granted asylum, as opposed to mere public curiosity, then this
interest
or curiosity must yield to the more general public interest
in the integrity of the asylum system and the confidentiality of
asylum
proceedings. That was Applicants’ contention, and I
agree with it.
25.
The
Relation Between the Limitation and its Purpose;
There
is no doubt that the relevant limitation is properly connected to its
purposes and I have already referred to the importance
of the
confidentiality aspect in the South African Act and other
international documents. I have mentioned why confidentiality
is
necessary, and why this must be so at all stages as required by the
provisions of section 21(5).
26.
Less
Restrictive Means to Achieve the Statutes Purpose:
The
only form of less restrictive means to achieve the purpose that was
proposed in the affidavits before me was to allow the Board
to have a
discretion to allow persons to attend the appeal hearing, and to
publish a report thereon, subject to conditions that
may be imposed
by the Board. The existence of less restrictive means to limit a
constitutional right is, on its own, obviously
not decisive inasmuch
as the limitations analysis concerns proportionality in which all
factors is weighed against each other.
See:
Road Accident Fund v Madeyide
2011 (2) SA 26
(CC) at par 63 to 66, 81
and 92.
A
discretion in the case of section 21(5) would not be a suitable and
less restrictive means to achieve the purposes of confidentiality.
This is so because if asylum-seekers do not know, even before they
lodge applications for asylum that confidentiality will be respected
under all circumstances, there is a realistic chance that some of
them may either not lodge applications at all, or even if they
do,
are not completely candid about what they do disclose. Where the
Board to have a discretion, an asylum-seeker would have to
make a
choice before hand whether to disclose more, in order to make out a
proper case for asylum, but subject to the risk of safety
to those
closely associated with him, or disclose those interests, but then
running the risk of having the asylum application turned
down. In my
view this will totally subvert the asylum process and the
confidentiality that 1 deem to be an essential part of it.
27.
The
conclusion therefore is that the limitation imposed by section 21(5)
of the Refugees Act to the rights contained in section
16(1) of the
Constitution constitutes a justifiable limitation of those rights as
well as the “open justice” principle
and is accordingly
not unconstitutional. The review application by Applicants as per
prayers 1,2 and 3 of part B of the notice
of motion must therefore
fail. The unconstitutionality of section 21(5) of the Act that was
raised as an alternative to prayers
1, 2, 3 and for the reasons given
above the alternative relief sought in par 4.1, 4.2, 4.3, 4.4 and 4.5
must also fail. Although
Second Respondent’s conditional
counter-claim relating to the mentioned Appeal Board Rules was
brought on a conditional basis
as being ultra vires and invalid with
an alternative prayer relating to Rule 14(1), it is clear from the
objective facts that the
Board had no power to make rules during the
period in which it itself did not even exist. If there was no
empowering legislation,
it could obviously not act in terms thereof.
The result is that the rules cannot be legally valid. There are many
older and modern
authorities to this effect, and as far as the former
is concerned I can do no
better
then refer to Administrative Law, L Baxter, Juta and Company, pages
384-387 The general principle has always been that a
public authority
has no powers other then those which have been conferred upon it by
legislation. In the more modern context I
have referred to the
Fedsure supra decision of the Constitutional Court in this context.
It would be an unacceptable absurdity
if I had to close my eyes to
the objective reality in this context, and either read something in
to a rule which does not exist
in law, or assume that the Appeal
Board has validly adopted such rules by implication merely because of
the fact that they continued
to act throughout the years as if those
rules were validly in existence. The rules were simply not lawfully
made, and that should
be the end of the matter. The only question
that needs consideration however is the fact that objective
invalidity ab initio may
bring with it a legal uncertainty and
possible litigation that was never contemplated by any interested
party. It must be remembered
that generally speaking our law has
always recognised that even an unlawful administrative act is capable
of producing legally
valid consequences for so long as the unlawful
act is not set aside. On the facts of this case a good distinction
can be made between
what existed in law and what existed in fact. For
the relevant period the Appeal Board did not exist and it could not
make the
rules. That is according to law. In fact however it
continued to operate and in fact did make the relevant rules. Legal
effect
is then given to the consequences of the initial void act and
that is the reason why they will have legal affect until the initial
act is set aside by a court. See: Oudekraal Estates (Pty) Ltd v City
of Cape Town and Others
2004 (6) SA 222
(SCA) at par 26 to 35.
As
far as costs are concerned 1 intend to follow the approach laid down
again in Biowatch Trust v Registrar Genetic Resources
2009 (6) SA 232
(CC) at par 21-25. The application raised important matters of
constitutional substance.
29.
The
following orders are therefore made:
29.1
Applicants’ application for review
in terms of prayers 1, 2 and 3 of the notice of motion is dismissed;
29.2
It is declared that the provisions of
section 21(5) limit the rights of the press and limits its freedom to
receive or impart information
or ideas provided for in section 16(1)
of the Constitution, but that such limitation is justifiable and
reasonable taking into
account all of the factors as provided for by
section 36(1) of the Constitution. Accordingly prayer 4 of
Applicants’ notice
of motion is dismissed.
29.3
It is declared that the Refugee Appeal
Board Rules published under GN 1330 in Government Gazette 25470 of 26
September 2003 are
invalid. This declaration of invalidity shall come
into force as from the date of this judgment;
29.4
No order as to costs is made.
JUDGE
H J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Date
of hearing:15 and 16 November 2012
Date
of Judgment: 6 December 2012
Applicants
Counsel: Adv. Cockrell SC
Adv.
Friedman
Instructed
by:Weber Wentzel Attorneys
Johannesburg
First
and Third Respondents’ Counsel: Adv Bofilatos SC
Adv
Manaka
Instructed
by: State Attorney
Pretoria
Second
Respondent’s Counsel: Adv. Marcus SC
Adv.
Budlender Adv. Smit
Instructed
by:Chris Walters Attorneys
Bedfordview