South Africa: The Constitutionality of the Confidentiality Provisions in the Refugees Act

Salc : Staff Writer

SALC was admitted as amicus curiae (friend of the court) in the Constitutional Court matter, Mail and Guardian Media Limited and others v Chipu NO and others. On 27 September 2013, the Court ruled that section 21(5) was unconstitutional as it was an unjustifiable limitation of the right to freedom of expression. In a unanimous judgment Judge Zondo suspended the invalidity for two years to enable Parliament to correct the constitutional defect.

This case concerned an application by a number of media houses for access to Czech fugitive Radovan Krejcir’s Refugee Appeal Board (RAB) hearing following his unsuccessful refugee status application. After their request to be present at Krecjir’s hearing was denied by the RAB the media houses launched legal proceedings in the High Court, arguing that the Refugees Act’s requirement that confidentiality be maintained at all times, contained in section 21(5), unreasonably infringed the right of freedom of expression, including freedom of the media. The High Court ruled that the confidentiality provisions are absolute and are designed to protect the safety of asylum seekers and refugees, and that this important aim outweighed the interest the public had in attending refugee hearings. The media groups then appealed the matter directly to the Constitutional Court.

SALC’s submissions did not intend to undermine or detract from the fundamental importance of confidentiality in the context of refugee applications through its participation in this matter, and consistently maintained that every effort must be made to ensure the safety and well-being of refugee claimants. This protection is greatly enhanced by the legal recognition of the applicability of confidentiality in the context of refugee and asylum claims. However SALC was concerned that in limited instances absolute confidentiality may:

  • Frustrate the broader purpose and objectives of the Refugees Act;
  • Affect the credibility, integrity and sustainability of the refugee protection regime; and
  • Have implications for South Africa’s adherence to international obligations it has assumed under other international treaties, conventions or customary international law.

 

SALC’s submissions dealt with the broader effects of the absolute confidentiality system in South African refugee law, focusing on its implications for the country’s adherence to international criminal law obligations. The Refugees Act contains an exclusion clause that prohibits the grant of refugee status to persons suspected of committing international crimes. SALC submitted that a rigorous application of the exclusion clauses contributes to efforts to secure accountability for serious international crimes and the blanket confidentiality may hinder this contribution.

SALC’s submissions addressed the following aspects:

  • Confidentiality serves an important purpose, facilitating the reception of refugees in need of protection;
  • Blanket or absolute confidentiality removes safeguards against the incorrect acceptance of individuals who fall within the ambit of the exclusion clause due to involvement in international crimes. This is because it may shield controversial decisions from external scrutiny and accountability and Preclude an assessment of whether South Africa is in fact complying with its international and domestic human rights obligations to ensure that only the vulnerable are protected and that those accused of international crimes do not evade justice.
  • The example of New Zealand and Canada where exceptions to confidentiality are permitted.

 

The outcome of this case may have implications for the administration of South Africa’s refugee system as whole, and is an important refugee case that relates not only to South Africa’s international refugee obligations but to its complementary obligations under international criminal law.

Founding Affidavit

Heads of Argument

High Court Judgment

Constitutional Court Judgment

For more information on this case visit the Constitutional Court website