Mail and Guardian Media Ltd and others v MJ Chipu and others, CCT 136/12 (“the Chipu” judgement) 12 May

Chipu judgement On 27 Sept 2013 – CC declared section 21(5) of the Refugees Act, 1998 (Act No. 130 of 1998) (“the Act”) inconsistent with the freedom of expression rights entrenched in section 16 of the Constitution (particularly s 16(1)(a) –freedom of the press and other media and 16(1)(b) – freedom to receive or impart information or ideas). The CC held s 21(5) of the Act to be invalid in 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 appropriate cases. Section 21(5) - “The confidentiality of asylum applications and the information contained therein must be ensured at all times.” 2

Chipu judgement cont. - Background Applicants brought matter to CC as an appeal against the order made by the North Gauteng High Court; High Court: applicants sought an order – - confirming that the Refugee Appeal Board had a discretion to allow access to its proceedings (this was after the Appeal Board refused to allow them access to Mr Krejcir’s (2 nd respondent’s) appeal hearing); - in the alternative sought an order declaring s 21(5) of the Act 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 - s 21(5) constituted an unreasonable and unjustifiable limitation of the right to freedom of expression; and - that certain words be read into s 21(5) to cure the alleged defect. 3

High Court Order Concluded that although s 21(5) of the Act constituted a limitation of the right to freedom of expression, the limitation was reasonable and justifiable as contemplated by s 36 of the Constitution. Hence, the HC dismissed the application for an order declaring s 21(5) unconstitutional. 4

Chipu CC judgement In CC – applicants appealed the decision of the HC. In CC – the parties agreed that there is a need for confidentiality in asylum applications and appeals to the Appeal Board (para 12). However, where they differed is on whether or not the confidentiality should be absolute. Applicants: argued 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. - Their issue with s 21(5) is that it does not admit of any exception to the requirement of confidentiality and that there will be cases where there would be no justification for confidentiality because, for example, the information in the application is already in the public domain and the requirement of confidentiality would serve no purpose. 5

Chipu CC judgement cont. Respondents: argued that absolute confidentiality is required to maintain the integrity of the asylum system and to protect asylum applicants and their families against possible threats or danger to their safety and lives. - They argued that a statutory requirement that applications should be treated with absolute confidentiality is necessary and fully justified and argued that the public and media should not be entitled to attend a hearing before the Appeal Board and that no exceptions should be made under any circumstances. Main enquiry in the CC was whether section 21(5) of the Act was a reasonable and justifiable limitation of the right to freedom of expression as required by section 36 of the Constitution. 6

Chipu CC judgement cont. In addressing the issue the CC: - considered and discussed the limitation in s 21(5) against the factors listed in section 36 of the Constitution; - considered and analysed various pronouncements made by the United Nations High Commissioner for Refugees (UNHCR) on the need for confidentiality in refugee claims and was of the opinion that these pronouncements do not intend to say that there can be no disclosure of any information whatsoever; -considered the question as to whether absolute confidentiality was the international norm and found that there were countries where the relevant authority had some discretion to allow access to asylum applications; and -looked at and compared the confidentiality requirement in other SA statutes. 7

Chipu judgement – CC’s finding The CC concluded: -that it was satisfied that the legitimate purpose of s 21(5) of the Act (which is intended to protect the asylum applicants and the integrity of the asylum system) could be achieved by less restrictive means – namely, by conferring a discretion on the Appeal Board to allow access to its proceedings in appropriate circumstances under appropriate terms and conditions (para 93); -that absolute confidentiality is NOT essential (para 93); and -that s 21(5) of the Act 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 of the Constitution and thus invalid (para 94). 8

Constitutional Court order (para 115) The High Court declaration that s 21(5) of the Act is a reasonable and justifiable limitation of the right to freedom of expression in section 16 of the Constitution was set aside; S 21(5) of the Act declared inconsistent with s 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; Declaration of invalidity suspended for a period of two years from date of the order to enable Parliament to correct the constitutional defect in s 21(5); Provided a “temporary read-in provision” :Pending the correction of the defect, or the expiry of the two year period, whichever occurs first, section 21(5) of the Act is to be read as: 9

Constitutional Court’s read-in provision (Para 115(6)) Section 21(5) of the Act: “(5) 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 10

“Read- in” provision cont. (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; 11

“Read-in” provision cont. (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.” 12

“Read-in” provision cont. “Read –in” provision - Confers a discretion on the Appeal Board to, on application or conditions it deems fit, allow any person or the media to attend or report on its hearing if – (a) the asylum seeker consents; 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. 13

Implications of judgement Defect has to be corrected by 26 Sept 2015 (as that is when invalidity of s 21(5) of the Act will take effect AND the temporary “read-in” provision will fall away; If not corrected by 26 Sept 2015, there would be a gap in the law and Parliament would not have complied with a CC judgment. 14