The court yesterday ruled that Sec 21(5) of the Refugees Act was unreasonable and unjustifiable to the extent that it did not give the Refugee Appeal Board (RAB) a discretion to allow access to its proceedings in appropriate cases.
The court gave Parliament two years to remedy the defect in the Act and temporarily granted the RAB a discretion to allow any person to attend and report on its hearings on conditions it deemed fit. The RAB will have to take relevant factors into account, including if the asylum seeker consen-ted to a third party’s access to the hearing and if it was in the public interest.
The court, however, didn’t set aside an earlier ruling by the North Gauteng High Court refusing the media access to Krejcir’s asylum hearing because the media houses didn’t appeal against it and because of its ruling the requirement of confidentiality is relaxed.
The media houses maintained the absolute confidentiality of asylum applications was an unjustifiable limitation of the constitutional right to freedom of expression, including freedom of the press and freedom to receive and impart information or ideas.
The Minister of Home Affairs, however, contended absolute confidentiality was required to maintain an effective asylum system.
The Southern Africa Litigation Centre (SALC), which was admitted as a friend of the court, said confidentiality served an important purpose to facilitate the reception of refugees in need of protection, but the blanket confidentiality removed safeguards against the incorrect acceptance of individuals who fall within the ambit of the exclusion clause due to involvement in international crimes.
SALC said confidentiality could shield controversial decisions from external scrutiny and accountability and preclude an assessment of whether South Africa was in fact complying with its international and domestic human rights obligations to ensure that only the vulnerable were protected and those accused of international crimes didn’t evade justice.
Krejcir has been fighting his extradition to the Czech Republic, where he faces a range of criminal charges, since he arrived in South Africa in 2007, claiming the charges were trumped-up because of his involvement in a political scandal.
He was sentenced in absentia to 11 years imprisonment last year for tax fraud in his country and has been linked to underworld figures in Johannesburg. He launched an appeal after his initial application for asylum in South Africa was refused.
His extradition hearing was postponed earlier this month in the Kempton Park Magistrate’s Court for his lawyers to present a report on his application for refugee status.