Access to Public Information, Privacy, Data Protection and Retention
Israel Courts’ Administration v. The Marker Newspaper
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Mail and Guardian, Independent newspapers and Media 24 requested an order that would allow these media outlet access to a criminal hearing. The applicants challenged the blanket ban on coverage provided for by Refuges Act, which requires confidentiality for asylum proceedings. The Constitutional Court found this automatic ban to be an undue limitation on freedom of information, and the Court substituted the ban with a new rule giving the court the discretion to allow public access.
Mail and Guardian Media Limited, Independent Newspapers (Pty) Ltd and Media 24 brought an appeal to South Africa’s Constitutional Court in a case against M J Chipu, in his capacity as representative of South Africa’s Refugee Appeal Board, Radovan Krejcir, and the Minister of Home Affairs. The applicants wanted the court to declare constitutionally invalid the provision in section 21 (5) of South Africa’s Refugee Act that allows absolute confidentiality for asylum application, hearings, and proceedings (paras 4, 37). The issue arose after Krejcir filed an application for appeal with the Appeal Board.
The Appeals Board, in accordance with its right under section 21 (5), denied the right of journalists to be present for his hearing (para 37). Section 21 (5) of the Refugee Act states that “[t]he confidentiality of asylum applications and the information therein must be ensured at all times” (para 42). The journalists bringing this case alleged this provision violated section 16 of South Africa’s Constitution, which reads “[e]veryone has the right to freedom of expression, which includes…freedom of the press and other media [and] freedom to receive or impart information or ideas” (para 41).
The journalists objected on the ground that section 21(5) of the Refugee Act allowed no room for discretion by the Appeals Board to grant access to the media, and the Act allowed the Board to maintain a policy of absolute confidentiality for circumstances in which there was no justification (para 43). They argued that this right was particularly relevant in Krejcir’s case, because Krejcir’s actions implicated “possible nationwide and international criminal activity and corruption,” which fell directly into the public domain (para 56). The Appeals Board argued that absolute confidentiality was necessary and fully justified (para 44), making the question before the Court whether or not section 21(5) was a reasonable and justifiable limitation on freedom of expression (para 46).
The question before the South African Constitutional Court is whether the absolute confidentiality requirement of section 21 (5) of the Refugee Act, which allowed the Appeal Board no discretion in allowing access to asylum applications and hearings, served as a reasonable and justifiable limitation on freedom of expression. Article 36 of the South African Constitution states that limitations on rights must be “reasonable and justifiable in an open and democratic society” (para 43). Additionally, Article 36 requires that the court take into account 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” (para 46). The court acknowledged that, especially in light of South Africa’s history of apartheid, the right to freedom of expression is particularly relevant (para 49, 51).
Next, the court evaluated importance of the absolute confidentiality and the relation between this limitation and its purpose. The court acknowledged that the protections enshrined in the confidentiality requirements of the asylum process exist to protect the asylum seeker, and his family and friends, from retaliation and the danger that arises when one flees his home for fear of persecution (paras 54, 55, 56). The Court next decided that the extent of the limitation, absolute confidentiality. Although the purpose of this limitation is protection, the court held that the limitation is overbroad in that it allows no discretion for relaxing the stricture. Therefore, section 21(5) cannot constitute a “justifiable limitation of the right to freedom of expression” (para 71).
The Court held that the legitimate purpose of the confidentiality, granted in section 21 (5) of the Refugee Act, could be achieved through less restrictive means. Thereby, the Court concluded that “section 21(5) is not a reasonable and justifiable limitation of the right to freedom of expression” and is therefore invalid to the extent that it is inconsistent with section 16 of the Constitution (paras 93, 94). The Court stated that the neither the integrity of the asylum system nor the safety of asylum seekers would be threatened by disclosure of information that would not reveal identities. Therefore, the court held it is valid to allow the Appeal Board the discretion to make decisions and allowing it to take into account the public interest in a particular matter (para 92). The Court found that allowing the Appeal Board discretion would be appropriate under certain conditions, and, as such, “absolute confidentiality [was] not essential” (para 93).
Accordingly, the Court ruled that now, Parliament must be given leave to amend section 21(5) to fix the “constitutional inconsistency” to reflect the Court’s decision (para 103). However, the Court also granted interim relief to the petitioning journalists by allowing a “reading-in” of language into section 21(5) that allows the Appeal Board the discretion to allow public and/or media access to hearings (paras 105, 106, 107).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The South African Constitutional Court holding in this case expands expression, placing it on par with international norms and practices. The Court held that South Africa’s Refugee Act, which allowed absolute confidentiality to the Asylum Appeal Board in processing and hearing asylum application cases, was in violation of South Africa’s Constitution as an impermissible curtailment of the right to freedom of expression. As an interim relief, the Court allowed section 21 (5) of the Refugee Act to be read to allow discretion to the Appeal Board to allow proceedings to be open to the public and or media, and as a permanent solution, required that Parliament alter the language to include this discretionary language. As detailed in paragraphs 72-82 of the decision, absolute confidentiality of asylum applications and proceedings is not an international norm (the Court cited Kenya, Zambia, Lesotho, Botswana, and Germany, et al, none of whom have absolute immunity and some of which offer discretion), and as such, in light of the constitutional analysis conducted by the court, the provisions of section 21 (5) allowed unreasonably and unjustifiably prohibitive restrictions on the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
South Africa’s Constitutional Court is the final court of appeal for cases dealing with constitutional matters, and, as such, its rulings are binding on all lower courts.
Let us know if you notice errors or if the case analysis needs revision.