Mail and Guardian Media Ltd and Others v Chipu N.O. and Others (CCT 136/12) [2013] ZACC 32; 2013 (11) BCLR 1259 (CC); 2013 (6) SA 367 (CC) (27 September 2013)

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[2013] ZACC 32
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Mail and Guardian Media Ltd and Others v Chipu N.O. and Others (CCT 136/12) [2013] ZACC 32; 2013 (11) BCLR 1259 (CC); 2013 (6) SA 367 (CC) (27 September 2013)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 136/12
[2013]
ZACC 32
In
the matter between:
MAIL
AND GUARDIAN MEDIA LIMITED
.........................................
First applicant
INDEPENDENT
NEWSPAPERS (PTY) LTD
..................................
Second
Applicant
MEDIA
24 LIMITED
............................................................................
Third
Applicant
and
M
J CHIPU N.O. (CHAIRPERSON OF THE
REFUGEE
APPEAL BOARD)
............................................................
First
Respondent
RADOVAN
KREJCIR
....................................................................
Second
Respondent
MINISTER
OF HOME AFFAIRS
.....................................................
Third
Respondent
and
SOUTHERN
AFRICA LITIGATION CENTRE
....................................
Amicus
Curiae
Heard
on : 14 May 2013
Decided
on : 27 September 2013
JUDGMENT
ZONDO
J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Froneman J, Jafta J,
Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya
J
concurring):
Introduction
This
is an application for leave to appeal against a judgment and order
made by the North Gauteng High Court, Pretoria (High Court)
on 6
December 2012. The applicants brought an application in the High
Court against the respondents for various orders.
1
Those orders were sought on the basis that the Refugee Appeal Board
(Appeal Board) had a discretion to allow access to its proceedings.

In the event that the Court found that the Appeal Board had no
discretion to allow access to its proceedings, the applicants
sought
in the alternative an order declaring that section 21(5) of the
Refugees Act (Act)
2
was inconsistent with the right to freedom of expression in section
16 of the Constitution to the extent that it precluded the
Appeal
Board from allowing, in appropriate cases, members of the public or
the media to attend and report on proceedings of the
Appeal Board.
The basis of the order declaring section 21(5) inconsistent with
section 16 was that it constituted an unreasonable
and unjustifiable
limitation of the right to freedom of expression. The applicants
also sought that certain words be read into
section 21(5) of the Act
so as to cure the alleged constitutional defect.
The
High Court, through Fabricius J, concluded that, although
section 21(5) of the Act constituted a limitation of the right

to freedom of expression, the limitation was reasonable and
justifiable as contemplated by section 36 of the Constitution. The

Court inter alia made a declaratory order to that effect. It,
accordingly, dismissed the application for an order declaring
section 21(5) unconstitutional. This is the order against which the
applicants seek leave to appeal.
The
parties
The
first applicant is Mail and Guardian Media Limited which publishes
the
Mail and Guardian
newspaper, a weekly national newspaper.
The second applicant is Independent Newspapers (Pty) Ltd. It
publishes various national
and regional newspapers.
3
The third applicant is Media 24 Limited. It publishes several
newspapers and magazines that are distributed throughout South

Africa.
4
The
first respondent is Mr M J Chipu, who is cited in his official
capacity as chairperson of the Appeal Board. The Appeal Board’s

main function is to hear appeals from determinations made by the
Refugee Status Determination Officer
5
(RSDO) in applications for asylum.
6
The second respondent is Mr Radovan Krejcir. The High Court
application was aimed at securing the attendance of the applicants’

journalists at Mr Krejcir’s appeal hearing before the Appeal
Board and reporting on it. The third respondent is the Minister
of
Home Affairs (Minister). She is responsible for the administration
of the Act.
The
Southern Africa Litigation Centre was admitted as amicus curiae
(friend of the Court). It is a regional human rights
non-governmental
organisation that seeks to promote and advance
human rights and the rule of law in Southern Africa through
research, capacity-building,
training and advocacy, and strategic
litigation.
7
The amicus filed written submissions and presented oral argument.
Lawyers
for Human Rights’ application for admission as amicus curiae
and for the admission of new evidence
Lawyers
for Human Rights (LHR) brought an application for admission as
amicus curiae and for the admission of new evidence. It
said that it
only sought to be admitted as an amicus if the new evidence would be
admitted. LHR’s application for the admission
of new evidence
was made in terms of Rule 31 of the Rules of this Court,
8
alternatively Rule 30 of the Rules of this Court
9
read with section 22 of the Supreme Court Act.
10
Rule
30 incorporates the provisions of section 22 into the Rules of this
Court. Section 22 reads as follows:
“
The
appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power—
(a)
on the hearing of an appeal to receive further evidence, either
orally or by deposition before a person appointed by such division,

or to remit the case to the court of first instance, or the court
whose judgment is the subject of the appeal, for further hearing,

with such instructions as regards the taking of further evidence or
otherwise as to the division concerned seems necessary; and
(b)
to confirm, amend or set aside the judgment or order which is the
subject of the appeal and to give any judgment or make any
order
which the circumstances may require.”
In
this judgment a reference to section 22 must be read as a reference
to Rule 30 read with section 22.
In
Rail Commuters
11
one of the requirements applied by this Court for the admission of
new evidence under section 22 was that it must be “weighty
and
material and presumably to be believed”.
12
It also applied the requirement that there must be a reasonably
sufficient explanation as to why such evidence was not presented
in
the court of first instance.
13
In
Bel Porto
14
this Court said that its power to accept further evidence should not
be exercised “unless the circumstances are such that

compelling reasons exist to do so.”
15
It follows from this that, if the evidence sought to be adduced in
this Court under section 22 is not weighty and material or
if it is
weighty and material but there are no compelling reasons for this
Court to exercise its power in favour of admitting
it, the
application for the admission of the evidence should be dismissed.
In
terms of Rule 31 an amicus admitted to proceedings in this Court is
entitled, in documents lodged with the Registrar of this
Court, to
canvass relevant factual material that does not appear on the
record. However, the factual material must either be
common cause or
otherwise incontrovertible or must be of an official, scientific or
statistical nature capable of easy verification.
The
new evidence that LHR seeks to place before this Court relates to—
(a)
how dependent asylum applicants are upon appeals before the Appeal
Board for the ultimate fate of their asylum applications;
(b)
the sensitive nature of asylum claims; this is based on, among
others, the nature of persecution to which asylum seekers would
have
been subjected in their countries of origin;
(c)
credibility assessments of asylum seekers; this deals with the fact
that both at first instance level and at appeal level asylum

applicants will not be able to produce any documentation to support
their claims of persecutions and both the RSDOs and the Appeal
Board
have to assess their credibility themselves;
(d)
how asylum applications are processed under the Act and how appeals
are disposed of by the Appeal Board;
(e)
various documents attached to Ms Ramjathan-Keogh’s affidavit
including reports all of which fall under one or other of
the
headings in (a) to (d) above. LHR seeks to furnish international and
domestic statistics. Ms Ramjathan-Keogh, who is the Programme
Manager
of LHR’s Refugee and Migrant Rights Programme and the deponent
to LHR’s founding affidavit, gives this country’s

rejection rate in regard to asylum applications at first instance
which results in an increased backlog at appeal level. LHR seeks

admission of this evidence in order to show how bad the decisions
made by the RSDOs are.
Whether
LHR’s application is considered under section 22 or Rule 31
the first question that arises is whether the new evidence
is
relevant.
16
Under section 22, another question will be whether the evidence is
weighty and material. Yet another question under section 22
would be
whether LHR has shown that there are compelling reasons for this
Court to exercise its power in favour of admitting
the new evidence
and that there is an acceptable explanation why the evidence was not
placed before the court of first instance.
If the new evidence is
found not to be relevant, LHR’s application falls to be
dismissed under both section 22 and Rule
31. The relevance of the
new evidence must be assessed against the issues that we are called
upon to determine.
In
this case the applicants and the respondents are agreed that in
asylum applications and appeals to the Appeal Board there is
a need
for confidentiality. Where they differ is on whether or not the
confidentiality should be absolute and invariable. In
this regard
the applicants contend that there is no justification for the
confidentiality to be absolute and that the Appeal
Board should have
a discretion to relax the requirement of confidentiality in
appropriate cases. The respondents contend that
absolute
confidentiality is required to maintain the integrity of the asylum
system and to protect asylum applicants and their
families and
friends against possible threats or danger to their safety and
lives. As is explained later, the issue between the
parties
translates into an inquiry whether section 21(5) is a reasonable and
justifiable limitation of the right to freedom of
expression. I now
turn to consider whether the evidence is relevant. This makes it
necessary to go back to the headings under
which the new evidence
falls as set out above.
17
The
evidence referred to in paragraph 10(a) above is about how dependent
asylum applicants are upon appeals before the Appeal
Board for the
ultimate fate of their asylum applications and appeals. LHR says
that the decisions of RSDOs are mostly bad. This
evidence says
nothing about why there should be no exceptions to the requirement
of confidentiality which is the issue between
the parties.
Therefore, I am of the view that the evidence under paragraph 10(a)
is irrelevant and should, accordingly, not be
admitted both under
section 22 and under Rule 31.
The
evidence to which reference is made in 10(b) is evidence relating to
the sensitive nature of asylum claims. This relates to
the nature of
persecutions to which asylum seekers would have been subjected in
their countries of origin. One does not need
any evidence to accept
that asylum seekers are driven to applying for asylum because they
have been subjected to all kinds of
persecutions in their countries
of origin, including assault, unlawful detention or imprisonment,
the persecution of members
of their families, colleagues and
friends. That a person has been subjected to persecution or threats
of persecution follows
from the very fact of being a bona fide
asylum seeker. This new evidence referred to in 10(b) does not
relate to the issue between
the parties. Accordingly, it is
irrelevant and should also not be admitted.
The
evidence referred to in 10(c) above relates to the credibility
assessment of asylum seekers. Evidence under this heading is
also
irrelevant to the issue before us. The evidence under 10(d) above
relates to how asylum applications are processed and decided
under
the Act. This evidence is irrelevant because it tells us what we can
read for ourselves in the Act.
LHR
also filed three confirmatory affidavits deposed to by certain
refugees. The deponents to those affidavits say that they confirm

what is stated in Ms Ramjathan-Keogh’s affidavit in so
far as it relates to them but a reading of her affidavit does
not
reveal any reference to their personal experiences in the asylum
system. Accordingly, the confirmatory affidavits are of
no use,
irrelevant and cannot be admitted.
The
conclusions reached above in respect of the evidence falling under
paragraph 10(a) to (d)
18
mean that all of the new evidence LHR seeks to have admitted in
these proceedings is irrelevant. On this ground alone, LHR’s

application for the admission of new evidence must be dismissed.
Under section 22, even if the new evidence or part of it were
to be
said to be relevant, the application would still be dismissed on the
basis that it is not weighty and material.
Under
section 22 LHR was also required to show that compelling reasons
exist why the new evidence should be admitted in this Court
when it
had not been introduced in the High Court.
19
The main explanation given by LHR was that it made a strategic
decision not to introduce this new evidence in the High Court

because of scarce resources or due to costs. This explanation is
unacceptable and cannot be said to constitute a compelling reason

for the admission of the new evidence. For this reason, too, LHR’s
application should be dismissed in so far as it was
brought under
section 22.
The
applicants contended that the new evidence could not be admitted
under Rule 31 because, in order to be admitted under this
Rule, it
was required to be undisputed or to be of a statistical, scientific
or official nature capable of easy verification.
They argued that to
the extent that some of the evidence that LHR sought to be admitted
is of a statistical nature, it cannot
be admitted under Rule 31
because it is irrelevant to the issue we are called upon to
determine.
As
to the other evidence, Mr Dario Milo, the applicants’
attorney, deposed to an affidavit. He said that Ms Ramjathan-Keogh’s

affidavit in this case to the effect that there should be absolute
confidentiality in asylum applications as well in proceedings
before
the Appeal Board was in conflict with her affidavit in another
matter in the High Court. Mr Milo attached a copy of that
affidavit
to his affidavit. Accordingly, the applicants contended that the
evidence that LHR sought to have admitted was disputed
and could
not, therefore, be admitted under Rule 31. I agree. On this ground,
too, LHR’s application for the admission
of new evidence
stands to be dismissed.
In
the light of the dismissal of LHR’s application for the
admission of new evidence, its application for admission as amicus

also falls to be dismissed.
Background
South
Africa is a party to the—
(a)
1949 Geneva Conventions;
(b)
1951 Convention relating to the Status of Refugees (1951 Refugee
Convention);
(c)
1969 Organisation of African Unity Convention Governing the Specific
Aspects of Refugee Problems in Africa (OAU Convention);
(d)
1977 Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of
International Armed
Conflicts; and
(e)
1984 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984 Torture Convention).
South
Africa has enacted the Implementation of the Geneva Conventions Act
20
in order to ensure the implementation of the Geneva Conventions. The
1984 Torture Convention incorporates the so-called
aut dedere aut
judicare
principle which means “extradite or prosecute”.
It requires signatories to this Convention to either extradite
perpetrators
of torture and cruel, inhuman or degrading treatment or
prosecute them. A state which subscribes to the Convention must
either
prosecute a person accused of certain specified crimes itself
or extradite such a person to a country that will prosecute him.
21
This means that, should such perpetrators enter South Africa, the
relevant authorities are obliged to either prosecute them or

extradite them. South Africa may not give them refugee status.
22
South
Africa is also a party to the Rome Statute of the International
Criminal Court (Rome Statute). It ratified the Rome Statute
in 2000.
In 2002 it passed the Implementation of the Rome Statute of the
International Criminal Court Act
23
for the purpose of the implementation of the Rome Statute.
24
The preamble to the Rome Statute reflects in part that it is “the
duty of every State to exercise its criminal jurisdiction
over those
responsible for international crimes”.
Article
1(F)(a) of the 1951 Refugee Convention provides:
“
The
provisions of this Convention shall not apply to any person with
respect to whom there are serious reasons for considering that
he has
committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn
up to
make provision in respect of such crimes”.
Both
the 1951 Refugee Convention and the 1969 OAU Convention recognise
classes of persons who are not eligible for refugee status.
The
Act was enacted pursuant to South Africa’s assumption of
certain obligations in terms of the 1951 Refugee Convention,
its
1967 Protocol Relating to the Status of Refugees, the 1969 OAU
Convention as well as other human rights instruments. These

obligations included the obligation to receive refugees in its
territory and to treat them in accordance with the standards and

principles established in international law. The purpose of the Act
is to give effect—
“
to
the relevant international legal instruments, principles and
standards relating to refugees; to provide for the reception into

South Africa of asylum seekers; to regulate applications for and
recognition of refugee status; to provide for the rights and
obligations flowing from such status; and to provide for matters
connected therewith.”
25
Section
2 of the Act contains a general prohibition against the refusal of
entry into South Africa, expulsion from South Africa
or extradition
of any person where—
“
(a)
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; or
(b)
his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.”
Section
3 of the Act lays down the qualifications for refugee status. It
reads:
“
Subject
to
Chapter
3
, a person qualifies for refugee status for the purposes of this
Act if that person—
(a)
owing to a well-founded fear of being persecuted by reason of his or
her race, tribe, religion, nationality, political opinion
or
membership of a particular social group, is outside the country of
his or her nationality and is unable or unwilling to avail
himself or
herself of the protection of that country, or, not having a
nationality and being outside the country of his or her
former
habitual residence is unable or, owing to such fear, unwilling to
return to it; or
(b)
owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either
a
part or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence
in order to
seek refuge elsewhere; or
(c)
is a dependant of a person contemplated in
paragraph
(a)
or
(b)
.”
Section
4 of the Act lays down four categories of persons who do not qualify
for refugee status for the purposes of the Act. It
reads:
“
(1)
A person does not qualify for refugee status for the purposes of this
Act if there is reason to believe that he or she—
(a)
has committed a crime against peace, a war crime or a crime against
humanity, as defined in any international legal instrument
dealing
with any such crimes; or
(b)
has committed a crime which is not of a political nature and which,
if committed in the Republic, would be punishable by imprisonment;
or
(c)
has been guilty of acts contrary to the objects and principles of the
United Nations Organisation or the Organisation of African
Unity; or
(d)
enjoys the protection of any other country in which he or she has
taken residence.”
A
literal reading of section 4(1)(b) is that an applicant for asylum
who has committed a non-political crime which, if committed
in South
Africa, would be punishable by imprisonment is disqualified from
refugee status. However, it may well be that section
4(1)(b) should
not be read literally and rigidly. Section 4(1)(b) seeks to give
effect to, among others, the 1951 Refugee Convention.
A reading of
part of the United Nations High Commissioner for Refugees Handbook
and Guidelines on Procedures and Criteria for
Determining Refugee
Status
26
(UNHCR Handbook) dealing with the provisions of the 1951 Refugee
Convention reveals that the relevant provision of the Convention

should not be read rigidly and that there are circumstances in which
a person who has committed a non-political crime may, nevertheless,

qualify for refugee status.
27
Under
the Act a person who wants to obtain refugee status is required to
attend in person at the Refugee Reception Office (Reception
Office)
where he or she must apply for that status.
28
At the Reception Office an asylum seeker will be attended to by a
reception officer. The reception officer has the power to conduct
an
inquiry in order to verify the information furnished in the
application.
29
The Reception Officer is required to forward the application to an
RSDO who has the power to make a decision on that application.
30
An RSDO is required to grant asylum or reject the application as
manifestly unfounded,
31
abusive
32
or fraudulent
33
or reject the application as unfounded or refer any question of law
to the Standing Committee established in terms of section
9 of the
Act.
34
An RSDO may request any information or clarification from an
applicant or the Refugee Reception Office.
35
He or she may also, where necessary, consult with and invite a UNHCR
representative to furnish information on specified matters.
36
With the permission of the asylum seeker, an RSDO may also provide
the UNHCR representative with such information as the latter
may
request.
37
The
Standing Committee
Section
9 of the Act makes provision for a Standing Committee. It is
composed of a chairperson and “such number of other
members as
the Minister may determine, having regard to the likely volume of
work to be performed by the Committee.”
38
Its members are appointed by the Minister with due regard to their
experience, qualifications, expertise and their ability to
perform
the functions laid down in the Act for the Committee. Its powers and
duties include:
(a)
formulating and implementing procedures for the granting of asylum;
(b)
regulating and supervising the work of the Refugee Reception Offices;
(c)
liaising with representatives of the UNHCR or any non-governmental
organisation;
(d)
reviewing decisions by RSDOs in respect of manifestly unfounded
applications;
(e)
deciding any matter of law referred to it by an RSDO; and
(f)
monitoring the decisions of the RSDOs.
39
The
Refugee Appeal Board
An
appeal against a decision of an RSDO lies with the Appeal Board.
40
The Appeal Board is composed of a chairperson and at least two other
members appointed by the Minister with due regard to their

suitability to serve as members of the Appeal Board by virtue of
their experience, qualifications, expertise and capability to

perform the functions of the Appeal Board properly.
41
At least one member of the Appeal Board is required to be legally
qualified.
42
A member of the Appeal Board must be a South African citizen.
43
In terms of section 14(1) of the Act its powers and duties are to—
“
(a)
hear and determine any question of law referred to it in terms of
this Act;
(b)
hear and determine any appeal lodged in terms of this Act;
(c)
advise the Minister or Standing Committee regarding any matter which
the Minister or Standing Committee refers to the Appeal
Board.”
In
terms of section 14(2) the Appeal Board may determine its own
practice and make its own rules. In terms of section 14(3), rules

made under section 14(2) must be published in the Gazette.
Mr
Krejcir is a Czech national. It seems that at some stage he was in
Seychelles because it was from Seychelles that he came to
South
Africa in 2007. He was granted a temporary asylum-seeker’s
permit in terms of section 22(1) of the Act.
44
Mr Krejcir applied for asylum but this was refused. He then appealed
to the Appeal Board against that decision.
In
2008 the government of the Czech Republic instituted extradition
proceedings against Mr Krejcir in the Kempton Park Magistrate’s

Court. The Magistrate’s Court refused to extradite Mr Krejcir.
In September 2010 the South Gauteng High Court, Johannesburg
set the
decision of the Kempton Park Magistrate’s Court aside on the
basis that the Magistrate who dealt with the matter
had prejudged
it. The High Court ordered that the extradition application be heard
afresh. It is not clear whether that hearing
has taken place.
According
to the applicants, various allegations have appeared in the media
concerning Mr Krejcir. They include that he—
(a)
obtained his asylum seeker permit fraudulently;
(b)
was involved in a “cash-swap” deal with a Mr Lolly
Jackson who is now deceased;
(c)
was involved in a scheme in which imported cars were used to smuggle
cash into the country;
(d)
was connected to the murder of one Frantisek Mrazek, allegedly an
organised crime figure in the Czech Republic;
(e)
is heavily involved in organised crime in the Czech Republic;
(f)
has bribed members of the police to interfere with the investigation
of the Hawks;
45
(g)
admitted in his bail hearing that he had been convicted of fraud and
sentenced to six years’ imprisonment in the Czech
Republic;
(h)
obtained a false passport;
(i)
was involved in certain murders; and
(j)
was arrested on charges of insurance fraud.
After
Mr Krejcir had appealed to the Appeal Board, the applicants
requested the Appeal Board to allow their journalists to attend
his
appeal hearing and report thereon. The Appeal Board refused the
request and indicated that the proceedings were confidential.

Subsequently, the applicants’ attorneys also sent letters to
the Appeal Board in further attempts to persuade it to grant
the
request but the Appeal Board was not prepared to change its
decision.
High
Court
The
applicants approached the High Court for various orders which, as I
have already indicated, the High Court refused to grant.
As I have
also said above, one of the orders that the High Court refused to
make was an order declaring section 21(5) unconstitutional.
It held
that, although section 21(5) constituted a limitation of the right
to freedom of expression, it was a reasonable and
justifiable
limitation of that right.
Leave
to appeal
If
granted leave to appeal, the applicants seek to attack the
conclusion of the High Court that section 21(5) is a reasonable
and
justifiable limitation of the right to freedom of expression.
This
Court has jurisdiction to entertain this matter because it is a
constitutional matter, namely, whether section 21(5) constitutes
a
reasonable and justifiable limitation of the right to freedom of
expression. This issue is one of importance upon which a decision
of
this Court is desirable. Furthermore, the applicants have reasonable
prospects of success. It is in the interests of justice
that the
applicants be granted leave to appeal to this Court.
Merits
Section
16(1)(a) and (b) reads as follows:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas”.
As
I explain later, the right to freedom of expression is a very
important right in our democracy.
Limitation
of the right
Section
21(5) reads as follows:
“
The
confidentiality of asylum applications and the information contained
therein must be ensured at all times.”
It
is common cause that section 21(5) constitutes a limitation of the
right to freedom of expression.
Issue
What
is in issue between the parties is whether the limitation is
“reasonable and justifiable in an open and democratic
society
based on human dignity, equality and freedom” as required by
section 36 of the Constitution. The applicants concede
that as a
general proposition, in applications for asylum, confidentiality is
justified. They even go further and say that in
most applications
for asylum there is a need for confidentiality. Their quarrel with
section 21(5) is that it does not admit
of any exception to the
requirement of confidentiality and the Appeal Board has no
discretion to relax this requirement under
any circumstances. They
contend that there will be cases where there is no justification for
confidentiality because, for example,
the information in the
application is already in the public domain and the requirement of
confidentiality serves no purpose.
The amicus adopted the stance
that, even though confidentiality is important, there are exceptions
where confidentiality should
be relaxed.
The
respondents contend that a statutory requirement that applications
for asylum be treated with absolute confidentiality is
necessary and
fully justified. They argue that the media and members of the public
should not have access to such an application
nor should they be
entitled to attend a hearing of an appeal concerning an asylum
application before the Appeal Board.
The
result is that, on the one hand, the applicants contend for a
position where the Appeal Board would have a discretion in an

appropriate case to allow the public or the media access to a
particular appeal hearing and asylum application. The respondents,

on the other hand, contend for absolute confidentiality in such
applications and appeal hearings before the Appeal Board with
no
exceptions to be made under any circumstances. It is necessary to
enquire into whether or not section 21(5) is a reasonable
and
justifiable limitation of the right to freedom of expression. If
section 21(5) is a reasonable and justifiable limitation,
it is
constitutional and the appeal falls to be dismissed. However, if
section 21(5) is not a reasonable and justifiable limitation,
it is
unconstitutional and the appeal would be upheld.
Is
section 21(5) a reasonable and justifiable limitation of the right to
freedom of expression?
In
seeking to determine whether section 21(5) is a reasonable and
justifiable limitation of the right to freedom of expression,
we are
required by section 36 of the Constitution to take 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; and
(e)
less restrictive means to achieve the purpose.”
These
factors should not be considered as a checklist. In
Manamela
46
this Court said:
“
It
should be noted that the five factors expressly itemised in section
36 are not presented as an exhaustive list. They are included
in the
section as key factors that have to be considered in an overall
assessment as to whether or not the limitation is reasonable
and
justifiable in an open and democratic society. In essence, the Court
must engage in a balancing exercise and arrive at a global
judgment
on proportionality and not adhere mechanically to a sequential
check-list. As a general rule, the more serious the impact
of the
measure on the right, the more persuasive or compelling the
justification must be. Ultimately, the question is one of degree
to
be assessed in the concrete legislative and social setting of the
measure, paying due regard to the means which are realistically

available in our country at this stage, but without losing sight of
the ultimate values to be protected.”
47
(Footnote omitted.)
In
National Coalition (1998)
48
this Court had the following to say about the inquiry into the
reasonableness and justifiability of a limitation of a right
entrenched in the Bill of Rights:
“
The
balancing of different interests must still take place. On the one
hand there is the right infringed; its nature; its importance
in an
open and democratic society based on human dignity, equality and
freedom; and the nature and extent of the limitation. On
the other
hand there is the importance of the purpose of the limitation. In the
balancing process and in the evaluation of proportionality
one is
enjoined to consider the relation between the limitation and its
purpose as well as the existence of less restrictive means
to achieve
this purpose.”
49
(Footnote omitted.)
I
now proceed to the justification analysis.
Nature
and importance of the right
The
right which section 21(5) limits is the right to freedom of
expression, particularly freedom of the press and other media
and
freedom to receive or impart information or ideas. The right is not
confined to the press and other media. Members of the
public also
have the right to receive and impart information or ideas. This
Court has dealt with the nature and importance of
the right to
freedom of expression in a number of cases. In
Phillips
50
this Court, through Yacoob J, said:
“
The
right to freedom of expression is integral to democracy, to human
development and to human life itself. It must be all the more

zealously guarded because the infringement of this right was used as
an instrument in an effort to achieve the degree of thought
control
conducive to preserve apartheid and to impose a value system
fashioned by a minority on all South Africans.”
51
Counsel
for the applicants correctly submitted that a key purpose of the
right is to enable the public to form and express opinions
on a wide
range of matters. In this regard he relied upon the decision of this
Court in
SABC
52
where this Court said:
“
Freedom
of expression is another of the fundamental rights entrenched in
Chapter 2 of the Constitution. This Court has frequently
emphasised
that freedom of expression lies at the heart of democracy. It is
valuable for many reasons, including its instrumental
function as a
guarantor of democracy, its implicit recognition and protection of
the moral agency of individuals in our society
and its facilitation
of the search for truth by individuals and society generally. The
Constitution recognises that individuals
in our society need to be
able to hear, form and express opinions and views freely on a wide
range of matters.”
53
(Footnotes omitted.)
In
SANDF
54
this Court said that “[f]reedom of expression lies at the heart
of a democracy.”
55
The
terms in which this Court has described the right to freedom of
expression show how vitally important the right to freedom
of
expression is to a democracy. Indeed, if there is no right to
freedom of expression, certain rights are weakened.
56
The
applicants correctly submit that the media plays a key role in
society and is not only protected by the right to freedom of

expression but is also a key facilitator and guarantor of the right.
In
Khumalo and Others v Holomisa
57
this Court said “[t]he print, broadcast and electronic media
have a particular role in the protection of freedom of expression
in
our society.”
58
A little later in the same case this Court pointed out that “the
media are important agents in ensuring that government
is open,
responsive and accountable to the people as the founding values of
our Constitution require.”
59
The Court went on to say:
“
In
a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens
both with
information and with a platform for the exchange of ideas which is
crucial to the development of a democratic culture.
As primary agents
of the dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy
and they have a
constitutional duty to act with vigour, courage, integrity and
responsibility.”
60
Counsel
for the applicants also relied upon the principle of “open
justice”. In
SABC
Langa CJ
et al
said that the
principle that underlies the right to a trial in public, which is
part of the right to a fair trial may aptly be
called a principle of
“open justice”.
61
They went on to say immediately thereafter:
“
This
principle does promote the accountability of courts and the
administration of justice. It has traditionally been understood
to
mean that court hearings must be open to members of the public who
wish to observe them and to journalists who wish to report
upon them.
Traditionally the principle has never been absolute. Trials and parts
of trials may be, and often are, held behind closed
doors to protect
the privacy or security of witnesses.”
62
The
respondents do not take issue with any of the above. However, it must
be borne in mind that the principle of “open justice”
is
normally applied to courts.
The
importance of the purpose of the limitation
It
is common cause that the purpose of section 21(5) is to—
(a)
protect the integrity of the asylum process;
(b)
encourage applicants for asylum to disclose information truthfully in
the knowledge that only those who officially need to deal
with asylum
applications will have access to the applications and the information
contained therein; and
(c)
protect asylum applicants and their families and friends in their
countries of origin from possible dangers or threats to their
lives
and safety that could arise if the fact of the application for asylum
and the information contained therein were disclosed.
People
who qualify for asylum status flee their countries of origin mostly
because of political, religious or cultural persecution.
Usually,
the governments or entities responsible for the persecution would
not hesitate to pursue such people to wherever they
can find them.
They would also persecute their families and friends back home when
they cannot find their targets. Accordingly,
those people live in
constant fear of being found out by the governments of their
countries of origin or their agents. This is
not only before they
may be granted refugee status but also for a long time thereafter.
Therefore, their and their families’
and friends’
protection is of vital importance. From this it must be accepted
that an asylum system which does not provide
for any confidentiality
whatsoever is highly unlikely to be effective. Many people who
qualify as refugees would naturally be
disinclined to expose
themselves to the serious risks inherent in such a system. The
purpose of section 21(5) is vitally
important.
The
applicants have made it clear that the information that they seek in
Mr Krejcir’s asylum application and the appeal
hearing
before the Appeal Board is not of a personal nature and they will
respect whatever conditions the Appeal Board may attach
to granting
them access if it does grant access. They say that what they are
interested in is possible nationwide and international
criminal
activity and corruption on Mr Krejcir’s part. They point
out that this is a matter which falls squarely within
the public
domain. Accordingly, the applicants contend that there is little or
no threat to Mr Krejcir’s right to
privacy. In effect the
applicants’ point is that section 21(5) cannot legitimately be
used for the purpose of shielding
those who may be involved in
international crime and those who may be a threat to our society.
Nature
and extent of the limitation
The
limitation contained in section 21(5) is of the nature of
confidentiality. The confidentiality required by the section is

absolute. The respondents seek to justify the requirement of
absolute confidentiality in all asylum applications irrespective
of
the circumstances. Section 21(5) prohibits access to
information in an asylum application even if the publication of
that
information will not disclose the identity of the applicant for
asylum or his country of origin and even if the information
is
already in the public domain. It also prohibits the publication of
information that could disqualify an applicant for asylum
such as
information that he committed or may have committed a crime against
humanity in his country of origin. In this regard
it is important to
point out that a person who has committed a crime against humanity
or who has committed a crime against peace
is disqualified from
getting refugee status
63
and yet the section 21(5) limitation is so wide that it even
covers a person in the sense that, even after his application
has
been rejected on the grounds that he has committed a crime against
peace or a crime against humanity, section 21(5) would
still
prohibit access to his asylum application. The question that arises
is: what purpose does keeping that person’s information

confidential serve after his application has been rejected on such a
basis?
The
relation between the limitation and its purpose
I
have already discussed above the limitation contained in section
21(5) as well as its purpose and the importance thereof. It
is not
necessary to repeat that discussion. It suffices to say that, quite
clearly, there is a relation between the limitation
in section 21(5)
and its purpose. The limitation serves the purpose of protecting the
integrity of the asylum system and
of providing asylum applicants
with protection against disclosure of the fact that they have
applied for asylum and the information
in their asylum applications.
Less
restrictive means to achieve the purpose
Section
36(1)(e) of the Constitution
64
requires that, before a limitation of a right entrenched in the Bill
of Rights can be said to be reasonable and justifiable,
a court is
required to consider whether there is a less restrictive way in
which that right may be limited. I, therefore, now
turn to that
inquiry. The question which arises is this: how is the purpose of
the limitation achieved in the case, for example,
of a person who,
after arriving in South Africa, discloses publicly, maybe in a press
conference, the reasons why he fled his
country of origin and other
information that is relevant to the asylum application? If the
applicants in the present case wanted
their journalists to attend
the asylum appeal hearing of that person before the Appeal Board,
why should section 21(5) preclude
the applicants’ journalists
from attending that person’s hearing and reporting on it? In
such a case there is no
purpose served by the limitation and the
limitation cannot be justified. In its judgment the High Court did
not deal with this
scenario nor did the respondents do so in their
written submissions despite the fact that in their written
submissions the applicants
had alluded to a case where the
information is already in the public domain and, therefore, section
21(5) would not serve its
purpose.
I
have referred above to section 4(1)(b) of the Act. In terms of that
provision a person who “has committed a crime which
is not of
a political nature and which, if committed in the Republic, would be
punishable by imprisonment” does not qualify
for refugee
status. However, I pointed out above that there may be cases where
this disqualification might not be applied rigidly.
The rationale
for this disqualification is the protection of the citizens of the
host country against common criminals who may
abuse the refugee or
asylum system of the country and seek refugee status or asylum when
they do not deserve it.
I
have already above referred to a situation where an asylum applicant
has committed a crime against humanity or a crime against
peace.
Both in terms of the international conventions to which South Africa
is a party and in terms of the Act such a person
does not qualify
for refugee status. However, should he or she apply for refugee
status under the Act and his application is
rejected because of this
reason, there is no logical reason why section 21(5) should require
that there should be no access to
that person’s asylum
application. Therefore, in that case the limitation does not serve
its purpose.
In
a discussion of the application of Article 1F of the 1951 Refugee
Convention, to which section 4 of the Act seeks to give effect,
the
UNHCR Guidelines on International Protection: Application of the
Exclusion Clauses dated 4 September 2003 (2003
UNHCR
Guidelines) reads as follows in relevant part:
“
The
rationale for the exclusion clauses, which should be borne in mind
when considering their application, is that certain acts
are so grave
as to render their perpetrators undeserving of international
protection as refugees. Their primary purpose is to deprive
those
guilty of heinous acts, and serious common crimes, of international
refugee protection and to ensure that such persons do
not abuse the
institution of asylum in order to avoid being held legally
accountable for their acts. The exclusion clauses must
be applied
‘scrupulously’ to protect the integrity of the
institution of asylum, as is recognised by UNHCR’s
Executive
Committee in Conclusion No. 82 (XLVIII), 1997.”
65
The
applicants contend that there is a less restrictive means by which
the purpose of the limitation may be achieved than the
one contained
in section 21(5). They submit that the Appeal Board should be given
a discretion to allow the media and the public
access in appropriate
cases on such conditions as the Appeal Board may impose and to
refuse access in those cases in which it
would not be appropriate to
allow the public or media access to the information. The applicants
submit that, if this were to
be done, an appropriate balance would
be struck between the protection of the legitimate interests of an
applicant for asylum
and an unjustifiable limitation of the right to
freedom of expression. The respondents argue that only absolute
confidentiality
will ensure that the integrity of the asylum system
is protected and that the lives and safety of asylum applicants,
their families
and friends are not jeopardised.
The
High Court took the view that conferring a discretion on the Appeal
Board would not achieve the purpose of the limitation
because
absolute confidentiality gives asylum applicants certainty which a
discretion cannot give them. It is true that section 21(5)

gives asylum applicants certainty, and that, if the Appeal Board has
a discretion to allow access in appropriate cases, that
will not
give them certainty. This is so because in exercising its discretion
the Appeal Board would allow access in some cases
and not allow it
in others. However, what is required by section 36 is the
achievement of proportionality. What the respondents
do not address,
which the High Court also did not address, is the applicants’
contention that there are cases where it
may be appropriate to allow
access because, for example, the asylum applicant has already put
certain information relevant to
an asylum application in the public
domain, in which case confidentiality does not serve its purpose.
The
pronouncements of the UNHCR
The
second respondent’s counsel submitted that the need for
confidentiality in the context of refugee claims has been repeatedly

and emphatically articulated by the UNHCR in a series of formal
pronouncements. In this regard counsel quoted a few passages
from
UNHCR documents. For example, he quoted a passage from the UNHCR
Guidelines on International Protection:
Gender-Related Persecution dated 7 May 2002 which reads as follows:
“
[Claimants
of refugee status] require a supportive environment where they can be
reassured of the confidentiality of their claim.
Some claimants,
because of the shame they feel over what has happened to them, or due
to trauma, may be reluctant to identify the
true extent of the
persecution suffered or feared.
.
. .
The
claimant should be assured that his/her claim will be treated in the
strictest confidence, and information provided by the claimant
will
not be provided to members of his/her family.”
66
Counsel
for the second respondent also referred to a passage in the
2003 Guidelines where, dealing with exclusion clauses,
the
UNHCR said:
“
At
all times the confidentiality of the asylum application should be
respected. In exceptional circumstances, contact with the country
of
origin may be justified on national security grounds, but even then
the existence of the asylum application should not be disclosed.”
67
The
UNHCR also said:
“
It
will be necessary for the examiner to gain the confidence of the
applicant in order to assist the latter in putting forward his
case
and in fully explaining his opinions and feelings. In creating such a
climate of confidence it is, of course, of the utmost
importance that
the applicant’s statements will be treated as confidential and
that he be so informed.”
68
Counsel
for the second respondent also referred to an advisory opinion given
to the Japanese Government on 31 March 2005 by the
UNHCR
Representative in Japan (UNHCR Advisory Opinion). In that advisory
opinion it was, inter alia, said:
“
The
right to privacy and its confidentiality requirements are especially
important for an asylum-seeker, whose claim inherently
supposes a
fear of persecution by the authorities of the country of origin and
whose situation can be jeopardized if protection
of information is
not ensured. It would be against the spirit of the [1951 Refugee
Convention] to share personal data or any
other information relating
to asylum-seekers with the authorities of the country of origin until
a final rejection of the asylum
claim.
Bearing
these concerns in mind, the State that receives and assesses an
asylum request must refrain from sharing any information
with the
authorities of the country of origin and indeed from informing the
authorities in the country of origin that a national
has presented an
asylum claim. This applies regardless of whether the country of
origin is considered by the authorities of asylum
as a “safe
country of origin”, or whether the asylum claim is considered
to be based on economic motives. Likewise,
the authorities of the
country of asylum may not weigh the risks involved in sharing of
confidential information with the country
of origin, and conclude
that it will not result in human rights violations.”
69
Counsel
for the second respondent submitted that it is clear from the
pronouncements of the UNHCR that a strict confidentiality
regime for
asylum seekers is integral to a refugee system. He submitted that
there is no suggestion in any of the UNHCR pronouncements
that a
discretion can or should be built into the requirement of
confidentiality.
I
am not satisfied that one can take the pronouncements of the UNHCR
as far as counsel for the second respondent would have this
Court
take them. I think that these pronouncements should be taken as
general propositions. They certainly do not appear to have
been
intended to say that there can be no disclosure of any information
whatsoever under any circumstances. In one of the passages
quoted
above from the Guidelines, it is stated that “[i]n exceptional
circumstances, contact with the country of origin
may be justified
on national security grounds”.
70
The last passage quoted above includes a
statement that “[i]t would be against the spirit of the [1951
Refugee Convention]
to share personal data or any other information
relating to asylum-seekers with the authorities of the country of
origin
until a final rejection of the
asylum claim
.”
71
(Emphasis added.)
The
above means that, according to the UNHCR Advisory Opinion upon which
the second respondent so heavily relies, in certain limited

circumstances it is acceptable if the information is shared with the
authorities of the country of origin after the rejection
of the
asylum claim. Section 21(5) does not even make that exception.
Furthermore, there is no indication that the UNHCR was
dealing with
the issue within the context of a limitation of the right to freedom
of expression that constitutes a blanket ban
on the information
which is what we are dealing with in the present case. Therefore, it
must not be assumed that, if the UNHCR
dealt with the issue in the
same context as we have to in this case, it necessarily would have
concluded that absolute confidentiality
is required without any
exception.
Counsel
for the second respondent also submitted that, to the extent that
the applicants concede that in the majority of cases
confidentiality
is justified, that may mean that it is in very few cases that
confidentiality will not be justifiable. He referred
to the
following passage in
Mamabolo
:
72
“
In
the present context, it is unnecessary to engage in an exhaustive
limitation analysis. The category of cases where the existence
of the
crime of scandalising the court still poses a limitation on the
freedom of expression is now so narrow, and the kind of
language
and/or conduct to which it will apply will have to be so serious,
that the balance of reasonable justification clearly
tilts in favour
of the limitation. Furthermore, there are very weighty considerations
underlying the retention of the particular
sanction, more
specifically there is a vital public interest in maintaining the
integrity of the Judiciary, an essential strut
supporting the rule of
law. Weighing the importance of that interest against the minimal
degree of limitation involved, the scale
once again favours saving
the sanction.”
73
Although
it is probably true that there will be fewer cases in which
confidentiality cannot be justified than those in which it
can be
justified, I do not think that they will be so few that absolute
confidentiality as required by section 21(5) can be said
to be a
justifiable limitation of the right to freedom of expression.
Is
absolute confidentiality the international norm?
The
respondents’ written submissions suggest that absolute
confidentiality is the international norm or practice. Counsel
for
the applicants disputed this and contended that some countries give
the relevant authority dealing with such applications
a discretion
to allow access in certain circumstances. Counsel for the
respondents did not give a list of countries in which
absolute
confidentiality is the norm or practice. However, counsel for the
applicants referred to Australia, Canada, New Zealand,
USA and
Ireland as countries where the relevant authority has some form of
discretion to allow access to asylum applications.
To those five
countries can be added Kenya, Zambia, Lesotho, Botswana and Germany,
all of which also do not have absolute confidentiality
but either
have different levels of power or discretion to relax
confidentiality or have no confidentiality requirement at all.
I
discuss the position in each one of these countries briefly below,
starting with our neighbours.
Lesotho
In
Lesotho the position is governed by the Refugee Act.
74
Applications for Refugee Status are considered by an
Interministerial Committee which includes a representative of the
Office
of the UNHCR in Lesotho. The Refugees Act of Lesotho makes no
provision for confidentiality at all.
Botswana
In
Botswana section 5(2) of the Refugees (Recognition and Control) Act
75
provides that the proceedings of a committee holding an inquiry into
whether an immigrant should be given refugee status “shall
be
in private and shall be conducted in such a manner as the Committee
may determine: Provided that the immigrant who is the
subject of the
inquiry shall be notified thereof and be given an opportunity of
appearing before the Committee and of making
representations
concerning his case to it.” There seems to be nothing in the
Botswana Act that deals with access to the
written application
itself. In Botswana there is absolute confidentiality in regard to
attending the inquiry.
Zambia
In
Zambia the Refugees (Control) Act
76
does not have any specific provision dealing with the issue. That
means that there is no confidentiality requirement in Zambia.
Kenya
In
Kenya section 24(1) of the Refugees Act
77
precludes a member of the Refugee Affairs Committee or employee or
agent of the Department of Refugees from disclosing information

acquired under this Act except in the course of his or her duties
under that Act or with the consent of the Commissioner. Section

24(2) precludes any person who receives information in contravention
of section 24(1) from disclosing or publishing the information.
It
seems that, although there is confidentiality, the Commissioner is
given wide powers to give consent for the disclosure of
the
information.
Canada
In
Canada the position is governed by section 166(c) and (d) of the
Immigration and Refugee Protection Act.
78
In terms of that Act there is an Immigration and Refugee Board which
consists of the Refugee Protection Division, Refugee Appeal

Division, Immigration Division and Immigration Appeal Division.
Section 166 confers power upon a Division to allow public access
in
certain circumstances.
79
New
Zealand
In
New Zealand the position is governed by section 18(3) of Schedule 2
of the New Zealand Immigration Act
80
read with section 151 of that Act. Section 18(3) is to the effect
that proceedings relating to an application for asylum are
not open
to the public but section 151 provides that this requirement of
confidentiality may be relaxed if, in a particular case,
there is no
serious possibility that anybody’s safety may be jeopardised
if there were to be a disclosure of information.
Ireland
Sections
16(14) and 19(2) of Ireland’s Refugee Act
81
provide that an oral hearing before the Refugee Appeals Tribunal is
conducted in private and requires any person wishing to publish
any
matter likely to disclose the identity of an applicant to seek the
consent of the applicant concerned. Section 16(15) allows
the UNHCR
or his or her representative in Ireland to be present at the appeal
hearing. In their written submissions counsel for
the applicants
pointed out that the consent of the relevant Minister is required in
addition to that of the applicant for refugee
status. Neither
sections 16(14) nor 19(2) supports this assertion. It would,
therefore, seem that in terms of the Refugee Act
the only outsider
permitted to attend the appeal hearing is the UNHCR or his or
representative in Ireland.
United
States of America
In
the United States of America section 208.6 of Title 8 of the Code of
Federal Regulations allows disclosure of information relating
to an
asylum application either where the asylum applicant gives his or
her consent in writing or where the Attorney General
exercises his
or her discretion in favour of disclosure. It is, therefore, clear
that the relevant authority is given a discretion.
Germany
In
Germany the position is governed by section 25 of the Asylum
Procedure Act.
82
The procedure to be followed in order for a person to be granted
refugee status entails making an application for that status.
The
procedure includes an interview of the applicant. Section 25(6)
reads as follows:
“
The
interview shall not be open to the public. It may be attended by
persons who show proof of their identity as representatives
of the
Federation, of a
Land
,
the United Nations High Commissioner for Refugees or the Special
Commissioner for Refugee Matters at the Council of Europe. The
head
of the Federal Office or his deputy may allow other persons to
attend.”
It
seems to me that, although the norm in Germany is that the interview
is not open to the public, the last sentence of section
25(6)
confers power upon the head of the Federal Office or his or her
deputy to allow other persons to attend. This means that

confidentiality is not an absolute requirement but that someone has
a discretion to allow more people to attend. That is in regard
to
attending the interview. There seems to be no provision prohibiting
access to documents containing information relating to
the asylum
application.
It
is clear from the above that different countries deal with the issue
of confidentiality in different ways. Some allow some
discretion
whereas others do not. Most of those referred to above have
certainly not adopted absolute confidentiality as a requirement
as
has been done by South Africa in the form of section 21(5).
Confidentiality
and other South African statutes
In
support of the applicants’ contention that the blanket
confidentiality contained in section 21(5) is not reasonable and

justifiable, counsel for the applicants pointed out that in the
Extradition Act
83
there is no equivalent of section 21(5) and extradition proceedings
are normally held in the open, and yet the person sought
to be
extradited may fear political persecution in his country of origin
should he be extradited. To resist extradition, the
person sought to
be extradited may use evidence of a likelihood of persecution in his
country of origin should he be extradited
which could be the same
evidence that he would use to obtain asylum under the Act.
84
Section 11(b)(iv) of the Extradition Act reads as follows:
“
The
Minister may order that a person shall not be surrendered if he or
she is satisfied that the person concerned will be prosecuted
or
punished or prejudiced at his or her trial in the foreign State by
reason of his or her gender, race, religion, nationality
or political
opinion.”
The
question which arises from this is why the Act requires absolute
confidentiality in asylum applications for the integrity
of the
asylum system and for the safety of the asylum applicants, their
families and friends and yet the Extradition Act operates
without
any confidentiality? Counsel for the respondents did not deal with
this point.
South
Africa is expressly required by Article 17 of the African Charter on
the Rights and Welfare of the Child of 1999 to prohibit
the press
and public from attending a trial involving juveniles. Section
40(2)(b)(vii) of the Convention on the Rights of the
Child of 1989
provides that in cases where a child is accused of having infringed
criminal law, the State must protect the privacy
of the child at all
stages of the proceedings. Counsel for the applicant drew attention
to the manner in which South Africa has
sought to give effect to its
obligations in this regard by way of the Child Justice Act
85
and the Children’s Act.
86
In terms of section 63(5) of the Child Justice Act hearings in
criminal proceedings involving minors are generally not open to
the
public but the presiding officer has a discretion to allow access.
Section 56 of the Children’s Act provides a list
of persons
who may attend proceedings in a children’s court. The list
includes “a person who obtained permission
to be present from
the presiding officer”. This shows that the presiding officer
in a children’s court has a discretion
or power to allow a
person not falling within the specified categories to attend the
proceedings. Furthermore, section 74 precludes
the publication of
any information relating to proceedings in a children’s court
“without the permission of the court”.
Again, there is
no absolute confidentiality.
Counsel
for the applicants also drew our attention to other statutes which
contain prohibitions on access and publication but
which confer a
discretion on the court or tribunal. He referred to—
(a)
section 10(4) of the Maintenance Act;
87
(b)
sections 153(2), 153(3), 153(3A), 153(5), 154(2), 154(3) and 335A(1)
of the Criminal Procedure Act;
88
(c)
section 5(1) of the General Laws Amendment Act;
89
(d)
section 8 of the Protection from Harassment Act;
90
and
(e)
section 29 of the Judicial Service Commission Act.
91
Counsel
for the applicants said that section 83(11) of the Income Tax Act
92
was the only statutory provision in our law that they were able to
identify which has a blanket and invariable prohibition on
access
and publication. In fact even this provision is no longer in the
Income Tax Act.
93
In
Johncom Media Investments
94
this Court considered the reasonableness and justifiability of
section 12(1) of the Divorce Act
95
as a limitation of the right to freedom of expression. Section 12(1)
prohibited the publication of any information emanating
from the
hearing of a divorce case. This was irrespective of the nature of
the information and whether the publication would
infringe the
rights of the parties to the divorce or the interests of their
children. However, it permitted the publication of
the names of the
parties to a divorce and the fact that a divorce action was pending
between the parties.
96
Writing
for a unanimous Court, Jafta AJ took the view that section 12’s
method of protecting the rights of children, quite
apart from going
too far, was not particularly efficient in achieving that purpose
because there was a less restrictive way of
achieving it.
97
That way was to prohibit the publication of the identities of the
parties and children in divorce proceedings as well as any
material
that would tend to reveal the identities of one or other of the
people to be protected. This meant that information
emanating from
divorce proceedings could be published as long as such information
would not disclose the identities of the parties
to the divorce and
their children.
98
Since
there was a less restrictive manner in which the purpose of section
12 could be achieved other than by way of the absolute
prohibition
contained in section 12(1), this Court held in
Johncom Media
Investments
that the limitation of the right to freedom of
expression was not reasonable and justifiable in terms of section 36
of the
Constitution and was, therefore, invalid. Jafta AJ put the
point in these terms:
“
But
the chosen method of protecting the rights of children, quite apart
from going too far, is also not particularly efficient in
achieving
the purpose. The legislature almost 30 years ago chose to allow the
publication of the identities of children as well
as of parties to a
divorce action and, at the same time, prohibited the publication of
any evidence at a divorce trial, whether
or not the prohibition of
publication was
necessary
to protect the relevant privacy and dignity interests. Yet, as will
be shown, another way to protect children and parties
would, in my
view, be to prohibit publication of the identity of the parties and
of the children. If that were to be done, the
publication of the
evidence would not harm the privacy and dignity interests of the
parties or the children, provided that the
publication of any
evidence that would tend to reveal the identity of any of the parties
or any of the children is also prohibited.
The purpose could be
better achieved by less restrictive means.”
99
I
cannot see why the integrity of the asylum system and the safety of
the asylum applicants and their families and friends would
be
threatened by the publication of information in an asylum
application that would not tend to disclose the identities of the

asylum applicant, his family and friends. However, that is not even
what the applicants seek to achieve here. The applicants
only want
to ensure that the Appeal Board is vested with a discretion to allow
access to its hearings in appropriate cases. Obviously,
in
considering that request for access the Appeal Board would consider
all relevant factors including, whether or not prohibiting
the
publication of information that does not tend to reveal the identity
of the asylum applicant or his or her family and friends
would not
be a sufficient protection. A very important factor in that inquiry
would be whether granting access would be in the
public interest.
I
am satisfied that the legitimate purpose of section 21(5) can be
achieved by less restrictive means, namely, by conferring a

discretion on the Appeal Board to allow access to its proceedings in
appropriate cases under appropriate terms and conditions.
In my view
absolute confidentiality is not essential. Indeed, as has been shown
above, there are countries whose asylum regimes
do not include
absolute confidentiality.
I
conclude that section 21(5) is not a reasonable and justifiable
limitation of the right to freedom of expression and that, to
the
extent that it does not confer a discretion upon the Appeal Board to
allow access to its proceedings in appropriate cases,
it is
inconsistent with section 16 and thus invalid.
Remedy
Section
172(1) of the Constitution provides that, when deciding a
constitutional matter within its power, a court—
“
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to
correct the
defect.”
Counsel
for the applicants submitted that the remedy of reading-in would be
a just and equitable remedy in the present case. In
the applicants’
founding affidavit in the High Court the applicants sought to have
read into section 21(5) the following
words which were to come
immediately after the word “times” in section 21(5) as
it presently stands:
“
.
. . save that, in proceedings before the Appeal Board, 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.”
Before
us counsel for the applicants proposed a more detailed reading-in. I
quote below section 21(5) as it would be read if I
were to accept
the words which counsel for the applicants submitted before us
should be read in. The words he proposed should
be read into section
21(5) are in italics:
“
The
confidentiality of asylum applications and information contained
therein must be ensured at all times,
save
that in proceedings before the Refugee Appeal Board, the Refugee
Appeal Board may on application or of its own accord allow
any person
or persons to attend a hearing, subject to conditions determined by
it.
a)
In determining whether any person or persons are to be allowed to
attend a hearing of the Appeal Board, the Appeal Board shall
have
regard to the following considerations:
(i)
the need to balance the interests of the appellant in retaining
confidentiality with the public interest in full disclosure
of the
evidence led at the hearing;
(ii)
the need to protect the integrity of the appeal proceedings;
(iii)
the identity of the appellant and the extent to which he or she may
be considered a public figure;
(iv)
the grounds advanced for claiming disclosure or for refusing it;
(v)
whether the information is already in the public domain and if so, in
what circumstances it reached the public domain (including
the role,
if any, played by the appellant in placing the information in the
public domain) and for how long and to what extent
it has been in the
public domain; and
(vi)
the impact of the disclosure or non-disclosure on the fairness of the
proceedings and the rights of the appellant.”
Counsel
for the second respondent opposed the remedy of reading-in and
submitted that this is a case in which this Court should
suspend the
declaration of invalidity to give Parliament the opportunity to
correct the constitutional defect. In support of
this submission
counsel pointed out that, in so far as the idea is that the Appeal
Board should have a discretion to allow access
to its proceedings in
appropriate cases, there are many ways in which this can be done and
this Court should defer to Parliament
to choose which one it
prefers.
Counsel
for the second respondent said that one form of a discretion would
be to open Appeal Board hearings to the public but
give the Appeal
Board a power to close them in certain cases. Another way would be
to keep the hearings closed to the public
but give the Appeal Board
the power to open them to the public in appropriate cases. One can
add to this the issue of the basis
upon which the Appeal Board would
be able to open its hearings to the public in a particular case if,
as a general rule, they
are closed to the public or the basis upon
which the Appeal Board would close its hearings to the public in a
particular case
if its hearings are normally open to the public.
In
other words this relates to what the test must be that should be
used to determine a request for access. Must the test be exceptional

circumstances? Must the test be if, in the opinion of the Appeal
Board, the disclosure is unlikely to pose a threat to the lives
and
safety of the applicant for asylum and his or her family and friends
in his country of origin? Yet another question is whether
any one
should bear the onus of showing the existence of exceptional
circumstances if that is to be the test. All of these are
issues on
which choices must be made in formulating the test that must be used
by the Appeal Board in exercising the discretion.
Must this Court
make those choices? I think not. It would be more appropriate for
Parliament to make such choices. This accords
with the doctrine of
the separation of powers.
The
amicus’ position was that, if we were minded to read the
suggested words into section 21(5), we should prescribe certain

guidelines “to fetter the discretion of the [Appeal Board].”
The guidelines suggested by the amicus included that
the disclosure
must be in the public interest and that regard must be had to the
purpose of the Act, the country’s constitutional
and
international obligations, and the importance of the right to
freedom of expression and media access to important governmental

functions. However, the amicus also indicated that it may well be
that, in the light of the importance and extensive nature of
the
considerations to be taken into account, the correction of the
defect should be left to Parliament.
Counsel
for the second respondent referred to the statement by this Court in
National Coalition (1999)
100
that “it will not be appropriate to read words in, unless in
doing so a Court can define with sufficient precision how
the
statute ought to be extended in order to comply with the
Constitution.”
101
He also referred to
Fraser
102
where this Court inter alia said:
“
Having
regard to . . . the multifarious and nuanced legislative responses
which might be available to the legislature in meeting
these issues,
it seems to me that this is a proper case to exercise our
jurisdiction . . . by requiring Parliament to correct the
defects
which I have identified in section 18(4)(d) of the Act by an
appropriate statutory provision. The applicant is not the
only person
affected by the impugned provision. There are many others and it is
in the interests of justice and good government
that there should be
proper legislation to regulate [the issue]”.
103
In
this case I am inclined to adopt the approach reflected in this
passage.
I
am of the view that a strong case has been made out for the
suspension of the declaration of invalidity to afford Parliament
an
opportunity to correct the constitutional inconsistency. I,
therefore, propose to suspend the declaration of invalidity in
order
to afford Parliament this opportunity.
What
is to happen in the interim?
The
applicants asked for interim relief that would govern the position
during the period of suspension of the order of invalidity.
They
proposed that the interim relief be granted by way of the reading-in
suggested above. In support of the request the applicants’

counsel submitted that, if no interim relief was granted, the Appeal
Board could continue with Mr Krejcir’s appeal without
the
applicants’ journalists being able to attend the proceedings
of the Appeal Board. He submitted that that would be seriously

prejudicial to the applicants. In this regard he pointed out that it
would also be untenable for Mr Krejcir’s appeal to
be deferred
to after Parliament has cured the defect because the appeal has been
pending for a long time.
Section
172(2)(b) of the Constitution empowers a court making an order of
constitutional invalidity to grant a temporary interdict
or other
temporary relief to a party. Accordingly, this Court has the power
to grant temporary relief. It is true that, if no
interim relief is
granted, the Appeal Board will be able to proceed with Mr Krejcir’s
appeal hearing with the applicants’
journalists still excluded
from the hearing because the Appeal Board will still have no power
to allow the applicants’
journalists to attend the
proceedings. In my view it is just and equitable that this Court
should grant the interim relief which
will not only afford the
applicants an effective remedy but that will also govern the
position during the suspension of the order
of constitutional
invalidity.
What
form must the interim relief take? The applicants submitted in
effect that the words that they had submitted should be read
into
section 21(5) as a remedy should be read into that section as
interim relief. The other parties and amicus did not
suggest any
other way to address the applicants’ problem. I have taken the
view above that it would not be appropriate
to resort to the remedy
of reading-in as a permanent remedy in this matter. However, it
seems to me that, for purposes of a temporary
remedy, the remedy of
reading-in would be appropriate. I propose to read in the words
suggested by the applicants subject to
such amendments as I may deem
appropriate.
This
will ensure that the Appeal Board has a discretion to allow a member
of the public or the media access to its hearings in
appropriate
cases during the period of the suspension of the order of
constitutional invalidity pending the correction of the

constitutional defect by Parliament. However, I will limit the
discretion of the Appeal Board in such a way that confidentiality

remains the norm but that it may be relaxed in appropriate cases.
In
terms of the order that I propose, the Appeal Board is to have an
additional function during the period of the suspension of
the order
of constitutional invalidity. It will decide applications that may
be made to it for access to its appeal hearings
in certain cases.
Those applications will be decided in accordance with the test as
reflected in the order of this Court.
I
have considered the issue of whether during the period of the
suspension the discretion to allow access to proceedings of the

Appeal Board should be conferred on a court of law rather than the
Appeal Board so that the exercise of that discretion would
be
judicially controlled. In my view we should not do so because that
would be granting relief that was not requested by the
applicants or
by any of the parties which this Court has said should not be done.
In
Bel Porto
this Court refused to grant a litigant relief
that it had not asked for. Chaskalson CJ said:
“
I
am therefore unable to agree with Ngcobo J that the appellants are
entitled to relief in the form proposed by him. This was not
the
relief sought by the appellants in the High Court or in this Court,
and it is inconsistent with the attitude adopted by the
appellants
throughout the litigation.”
104
The
only body that the applicants have sought to be vested with the
discretion is the Appeal Board. That can be seen even in the
words
that they proposed for reading into section 21(5). They never at any
stage asked that the discretion be conferred upon
a court of law. In
any event, since they seek access to proceedings of the Appeal
Board, the Appeal Board is the right body to
have the first
opportunity to decide to grant or refuse such access. Once it has
made its decision, then anyone aggrieved by
that decision may take
it on review to the High Court if there are grounds to follow that
route. It is at that stage that a court
of competent jurisdiction
may deal with the matter.
If
we thought that such a discretion should be conferred upon a court
of law to exercise at first instance, it would mean that
we do not
have confidence that the Appeal Board could exercise that discretion
properly. There would have to be proper reasons
upon which such lack
of confidence in the Appeal Board would be based. On the papers
before us there are no such reasons. Accordingly,
this is not an
option legitimately open to us. Nevertheless, given the importance
of the need for that discretion to be exercised
properly before
access may be given, it will be important that, in those cases where
the Appeal Board decides to grant access,
it ensures that before
access is had to its proceedings, it satisfies itself that no review
proceedings are intended to be instituted
to have its decision to
grant access reviewed and set aside. In other words a situation
should not be allowed where the Appeal
Board decides to grant access
and a member of the public or the media exercises that right of
access before the asylum applicant
concerned or an interested
organisation takes that decision on review. This is because in that
case the exercise of the right
of access before a decision has been
made to take the Appeal Board’s decision on review would
defeat the purpose of any
review that may be sought to be
instituted.
The
applicants have also asked this Court to make an order allowing them
to attend the appeal hearing relating to the second respondent

before the Appeal Board. I do not think that we should accede to
this request. The applicants elected not to appeal against the

decision of the High Court upholding the Appeal Board’s
refusal to allow their journalists to attend the Appeal Board’s

hearing of the second respondent’s appeal. The Appeal Board
reached that conclusion under a statutory regime which did
not give
it a discretion to relax the requirement of confidentiality. After
this Court’s judgment and pending the curing
of the defect by
Parliament, the Appeal Board will have a discretion to relax the
requirement of confidentiality in proceedings
before it in an
appropriate case. It is only proper that it be given an opportunity
to exercise its discretion if it is approached
again before a court
of law may deal with the matter, if necessary. The Appeal Board’s
decision will be subject to review
by the High Court in a case where
appropriate grounds of review exist.
Order
of confidentiality
The
applicants applied to this Court for an order that the Registrar
keep a certain part of the record in this case confidential.
In the
High Court the parties had agreed that the High Court make an order
to this effect and the High Court made such an order.
We made an
interim order to that effect pending this Court taking a final
decision on the matter. I am satisfied that we should
make a final
order to the same effect to apply for as long as the confidential
part of the record remains with the Registrar
of this Court. I shall
include an appropriate order to this effect.
Costs
The
applicants have indicated that there is an agreement between them
and the second respondent that the successful one between
them would
not seek costs against the other. However, the applicants do seek
costs against the first and third respondents. There
is no reason
why costs should not follow the result against the first and third
respondents, both of whom are organs of state.
Order
In
the result I make the following order:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The declaration by the North Gauteng High Court, Pretoria, that
section 21(5)
of the
Refugees Act 130 of 1998
is a reasonable
and justifiable limitation of the right to freedom of expression in
section 16 of the Constitution, is set
aside.
4.
It is declared that
section 21(5)
of the
Refugees Act 130 of 1998
is
inconsistent with section 16(1)(a) and (b) of the Constitution to the
extent that it precludes members of the public or the
media from
attending proceedings of the Refugee Appeal Board in all cases and
fails to confer a discretion upon the Refugee Appeal
Board to allow
the public and media access to its proceedings in an appropriate
case.
5.
The declaration of invalidity in paragraph 4 is suspended for a
period of two years from the date of this order to enable Parliament

to correct the constitutional defect in
section 21(5)
of the
Refugees
Act 130 of 1998
.
6.
Pending the correction of the defect, or the expiry of the two-year
period, whichever occurs first,
section 21(5)
of the
Refugees Act 130
of 1998
is to be read as providing as follows:
“
The
confidentiality of asylum applications and the information contained
therein must be ensured at all times, except that the Refugee
Appeal
Board may, on application and on conditions it deems fit, allow any
person or the media to attend or report on its hearing
if—
(a)
the asylum seeker gives consent; or
(b)
the Refugee Appeal Board concludes that it is in the public interest
to allow any person or the media to attend or report on
its hearing,
after taking into account all relevant factors including—
(i)
the interests of the asylum seeker in retaining confidentiality;
(ii)
the need to protect the integrity of the asylum process;
(iii)
the need to protect the identity and dignity of the asylum seeker;
(iv)
whether the information is already in the public domain;
(v)
the likely impact of the disclosure on the fairness of the
proceedings and the rights of the asylum seeker; and
(vi)
whether allowing any person or the media access to its proceedings or
allowing the media to report thereon would pose a credible
risk to
the life or safety of the asylum seeker or of his or her family,
friends or associates.”
7.
The Registrar of this Court is directed to ensure that no one has
access to the volumes of the record marked “confidential”

for as long as the Registrar has under her control or custody the
volumes of the record marked “confidential”.
8.
The first and third respondents are ordered to pay the costs of this
application jointly and severally, the one paying the other
to be
absolved.
For
the Applicants: Advocate G Budlender SC and Advocate A Friedman
instructed by Webber Wentzel.
For
the First and Third Respondents: Advocate G Bofilatos SC and
Advocate N Manaka instructed by the State Attorney.
For
the Second Respondent: Advocate G Marcus SC, Advocate S Budlender
and Advocate D Smit instructed by Chris Watters Attorneys.
For
the Amicus Curiae: Advocate S Cowen instructed by Wits Law Clinic.
1
One
of the orders they sought was an order reviewing and setting aside a
decision of the Refugee Appeal Board refusing them access
to the
second respondent’s asylum appeal hearing. That order had been
sought on the basis that the Refugee Appeal Board
had a discretion
to allow such access to an appeal but that its refusal to allow the
applicants access to that hearing was based
on the erroneous view
that it did not have a discretion.
2
130
of 1998.
3
Such
as:
The Star, Saturday Star, Cape Times, Cape Argus, Pretoria
News, The Mercury, Daily News
and others.
4
Including:
Beeld, City Press, City Vision, Daily Sun, Die Burger, Mirror,
Sunday Sun, The Witness
and others.
5
A
Refugee Status Determination Officer is an officer who is given
power under the Act to determine applications for asylum at
first
instance. See
section 24(1)
to (3) of the Act.
6
Section
26(1)
and (2) of the Act.
7
It
was established by a Deed of Trust the objectives of which include:
offering rapid-response support relating to human rights,

constitutional and public interest cases; promoting awareness of
human rights litigation; capacity-building; and stimulating
advocacy
for law reform, human rights and constitutionalism.
8
Rule
31
reads:
“
Documents
lodged to canvass factual material
(1) Any party to
any proceedings before the Court and an amicus curiae properly
admitted by the Court in any proceedings shall
be entitled, in
documents lodged with the Registrar in terms of these rules, to
canvass factual material that is relevant to
the determination of
the issues before the Court and that does not specifically appear on
the record: Provided that such facts—
(a) are common
cause or otherwise incontrovertible; or
(b) are of an
official, scientific, technical or statistical nature capable of
easy verification.
(2) All other
parties shall be entitled, within the time allowed by these rules
for responding to such document, to admit, deny,
controvert or
elaborate upon such facts to the extent necessary and appropriate
for a proper decision by the Court.”
9
Rule
30
reads:
“
Application
of certain sections of the Supreme Court, 1959 (Act No. 59 of 1959)
The following
sections of the Supreme Court Act, 1959 (Act No. 59 of 1959), shall
apply, with such modifications as may be necessary,
to proceedings
of and before the Court as if they were rules of their court.
Section Subject
19
bis
Reference of particular matters for investigation by referee
22 Powers of court
on hearing of appeals
32 Examinations by
interrogatories of persons whose evidence is required in civil cases
33 Manner of
dealing with commissions rogatoire, letters of request and documents
for service originating from foreign countries:
Provided that this
provision shall apply subject to the replacement of English or
Afrikaans with the phrase ‘any official
language’.”
10
59
of 1959. Section 22 is quoted in [7] below.
11
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) (
Rail Commuters
).
12
Id
at para 41.
13
Id.
14
Bel
Porto School Governing Body and Others v Premier, Western Cape, and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) (
Bel Porto
).
15
Id
at para 119.
16
Although
section 22 does not expressly refer to the requirement of relevance,
it is necessarily implied that any new evidence
would need to be
relevant before it could be admitted.
17
See
[10] above at (a)-(e).
18
Although
there is no self-standing discussion of paragraph 10(e), the reports
and documents to which reference is made in that
paragraph fall
under one or other of paragraphs 10(a) to (d).
19
See
Bel Porto
above
n 14 at para 119.
20
8
of 2012.
21
The
principle of
aut dedere aut judicare
is also found in other
conventions such as the 1970 Convention for the Suppression of
Unlawful Seizure of Aircraft; the 1988 United
Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances; the 1977 European Convention on the
Suppression of
Terrorism; and other treaties.
22
See
section 4(1)(a) of the Act.
23
27
of 2002.
24
Section
3(d) and (e) of the Implementation of the Rome Statue of the
International Criminal Court Act reads as follows:
“
(d)
to enable, as far as possible and in accordance with the principle
of complementarity as referred to in Article 1 of the Statute,
the
national prosecuting authority of the Republic to prosecute and the
High Courts of the Republic to adjudicate in cases brought
against
any person accused of having committed a crime in the Republic and
beyond the borders of the Republic in certain circumstances;
and
(e) in the event of
the national prosecuting authority declining or being unable to
prosecute a person as contemplated in paragraph
(d), to enable the
Republic to cooperate with the Court in the investigation and
prosecution of persons accused of having committed
crimes or
offences referred to in the Statute, and in particular to—
(i) enable the
Court to make requests for assistance;
(ii) provide
mechanisms for the surrender to the Court of persons accused of
having committed a crime referred to in the Statute;
(iii) enable the
Court to sit in the Republic; and
(iv) enforce any
sentence imposed or order made by the Court.”
25
See
the purpose of the Act.
26
First
published in 1979, re-edited in 1992 and re-issued in 2011.
27
Id
paragraphs 156-7 read as follows:
“
In
applying this exclusion clause, it is also necessary to strike a
balance between the nature of the offence presumed to have
been
committed by the applicant and the degree of persecution feared. If
a person has well-founded fear of very severe persecution,
e.g.
persecution endangering his life or freedom, a crime must be very
grave in order to exclude him. If the persecution feared
is less
serious, it will be necessary to have regard to the nature of the
crime or crimes presumed to have been committed in
order to
establish whether the applicant is not in reality a fugitive from
justice or whether his criminal character does not
outweigh his
character as a
bona
fide
refugee.
In evaluating the
nature of the crime presumed to have been committed, all the
relevant factors – including any mitigating
circumstances –
must be taken into account. It is also necessary to have regard to
any aggravating circumstances as, for
example, the fact that the
applicant may already have a criminal record. The fact that an
applicant convicted of a serious non-political
crime has already
served his sentence or has been granted a pardon or has benefited
from an amnesty is also relevant. In the
latter case, there is a
presumption that the exclusion clause is no longer applicable,
unless it can be shown that, despite the
pardon or amnesty, the
applicant’s criminal character still predominates.”
28
Section
21(1) of the Act.
29
Id
section 21(2)(c).
30
Id
section 21(2)(d).
31
In
section 1 of the Act a manifestly unfounded application is defined
as meaning “an application for asylum made on grounds
other
than those on which such an application may be made under this Act”.
32
An
abusive application is defined in section 1 of the Act as meaning:
“
[A]n
application for asylum made—
(a) with the
purpose of defeating or evading criminal or civil proceedings or the
consequences thereof; or
(b) after the
refusal of one or more prior applications without any substantial
change having occurred in the applicant’s
personal
circumstances or in the situation in his or her country of origin”.
33
A
fraudulent application for asylum is defined in section 1 as meaning
“an application for asylum based without reasonable
cause on
facts, information, documents or representations which the applicant
knows to be false and which facts, information,
documents or
representations are intended to materially affect the outcome of the
application”.
34
Section
24(3)(a) to (d) of the Act.
35
Id
section 24(1)(a).
36
Id
section 24(1)(b).
37
Id
section 24(1)(c).
38
Id
section 10(1).
39
Id
section 11.
40
Id
section 26(1).
41
Id
section 13(1).
42
Id
section 13(2).
43
Id
section 13(3)(a).
44
Section
22(1) of the Act provides:
“
The
Refugee Reception Officer must, pending the outcome of an
application in terms of section 21(1), issue to the applicant an

asylum seeker permit in the prescribed form allowing the applicant
to sojourn in the Republic temporarily, subject to any conditions,

determined by the Standing Committee, which are not in conflict with
the Constitution or international law and are endorsed by
the
Refugee Reception Officer on the permit.”
45
South
Africa’s
Directorate for Priority Crime Investigation
is commonly known as the Hawks, established in compliance with
section 17C
of the
South African Police Service Act 68 of 1995
.
46
S
v Manamela and Another (Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC)
(
Manamela
).
47
Id
at para 32.
48
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) (
National Coalition (1998)
).
49
Id
at para 35.
50
Phillips
and Another v Director of Public Prosecutions, Witwatersrand Local
Division, and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003
(4) BCLR 357
(CC) (
Phillips
).
51
Id
at para 23.
52
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) (
SABC
).
53
Id
at para 23.
54
South
African National Defence Union v Minister of Defence
[1999] ZACC
7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) (
SANDF
).
55
Id
at para 7 footnote omitted.
56
Those
rights include the right to freedom of religion, belief and opinion
contained in
section 15
, the right to assemble, demonstrate, picket
and petition contained in
section 17
and the right to freedom of
association contained in section 18 of the Constitution. If the
right to freedom of expression is
respected, promoted and
strengthened, those rights, too, are strengthened.
57
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC).
58
Id
at para 22.
59
Id
at para 23 footnote omitted.
60
Id
at para 24.
61
SABC
above n 52 at para 50.
62
Id.
63
Section
4(1)(a) of the Act.
64
Any
further reference to section 36 in this judgment is a reference to
section 36 of the Constitution.
65
At
para 2.
66
At
paras 35-36.
67
2003
UNHCR Guidelines at para 33.
68
UNHCR
Handbook at para 200.
69
UNHCR
Advisory Opinion on the Rules of Confidentiality regarding Asylum
Information, 31 March 2005 at paras 4-5.
70
2003
UNHCR Guidelines at para 33.
71
See
the second sentence in the passage quoted in [67] above.
72
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) (
Mamabolo
).
73
Id
at para 48.
74
1983.
75
1968.
76
1970.
77
2006.
78
S.C.
2001, c. 27.
79
Section
166 reads as follows:
“
(a)
subject to the other provisions of this section, proceedings must be
held in public;
(b) on application
or on its own initiative, the Division may conduct a proceedings in
the absence of the public, or take any
other measure that it
considers necessary to ensure the confidentiality of the
proceedings, if, after having considered all available
alternate
measures, the Division is satisfied that there is
(i) a serious
possibility that the life, liberty or security of a person will be
endangered if the proceeding is held in public;
(ii) a real and
substantial risk to the fairness of the proceeding such that the
need to prevent disclosure outweighs the societal
interest that the
proceedings be conducted in public, or
(iii) a real and
substantial risk that matters involving public security will be
disclosed;
(c) subject to
paragraph (d), proceedings before the Refugee Protection Division
and the Refugee Appeal Division must be held
in the absence of the
public;
(c.1.) subject to
paragraph (d), proceedings before the Immigration Division must be
held in the absence of the public if they
concern a person who is
the subject of a proceedings before the Refugee Protection Division
or the Refugee Appeal Division that
is pending or who has made an
application for protection to the Minister that is pending;
(d) on application
or on its own initiative, the Division may conduct a proceeding in
public, or take any other measure that it
considers necessary to
ensure the appropriate access to the proceedings if, after having
considered all available alternate measures
and the factors set out
in paragraph (b), the Division is satisfied that it is appropriate
to do so;
(e) despite
paragraphs (b) to (c1), a representative or agent of the United
Nations High Commissioner for Refugees is entitled
to observe
proceedings concerning a protected person or a person who had made a
claim for refugee protection or an application
for protection; and
(f) despite
paragraph (e), the representative or agent may not observe any part
of the proceedings that deals with information
or other evidence in
respect of which an application has been made under section 86, and
not rejected, or with information or
other evidence protected under
that section.”
80
51
of 2009.
81
17
of 1996.
82
Asylverfahrensgesetz
,
as amended, August 2007.
83
67
of 1962.
84
Id
section 11(b)(iv).
85
75
of 2008.
86
38
of 2005.
87
99
of 1998. Section 10(4) reads as follows:
“
No
person whose presence is not necessary shall be present at the
enquiry, except with the permission of the maintenance court.”
88
51
of 1977.
89
68
of 1957.
90
17
of 2011.
91
9
of 1994.
92
58
of 1962.
93
Section
83(11) was repealed by
section 271
of the
Tax Administration Act 28
of 2011
.
94
Johncom
Media Investments Ltd v M & Others (Media Monitoring Project as
Amicus)
[2009] ZACC 5
;
2009 (4) SA 7
(CC);
2009 (8) BCLR 751
(CC) (
Johncom Media Investments
).
95
70
of 1979.
96
Section
12(1) of the Divorce Act read as follows:
“
Except
for making known or publishing the names of the parties to a divorce
action, or that a divorce action between the parties
is pending in a
court of law, or the judgment or order of the court, no person shall
make known in public or publish for the
information of the public or
any section of the public any particulars of a divorce action or any
information which comes to
light in the course of such an action.”
97
Johncom
Media Investments
above n 94 at para 30.
98
Id.
99
Id.
100
National
Coalition
for Gay and Lesbian Equality and Others v Minister
of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National Coalition (1999)
).
101
Id
at para 75.
102
Fraser
v Children’s Court, Pretoria North, and Others
[1997] ZACC 1
;
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC)
.
103
Id
at para 50.
104
Bel
Porto
above n 14 at para 115.