On 14 May 2013 the Constitutional Court heard an appeal against a judgment handed down by the North Gauteng High Court.

The High Court had rejected various media houses’ request to be granted access to an asylum application at the Refugee Appeal Board by Czech fugitive, Radovan Krejcir.

The High Court application was launched after reporters from the Mail & Guardian, Independent Newspapers and Media24 were denied access by the Refugee Appeal Board to its hearing of Krejcir's appeal against the refusal of his application for asylum in South Africa. The media houses argued that the constitutional principle of "open justice", which is underpinned by the rights to freedom of expression and access to information, required the Board to permit the media to report on such hearings when the subject matter is in the public interest. The media houses also argued that the Board's own rules provided for it to allow public access.

The Board contended that it had no discretion to admit the media to the hearing, as section 21(5) of the Refugees Act (the Act) requires the confidentiality of asylum applications to be "ensured at all times". Mr Krejcir agreed with this argument, and added that the guarantee of confidentiality is essential for effective refugee protection under international law.

The High Court held that section 21(5) of the Act requires absolute confidentiality at all times; and that it could not be interpreted to afford the Board a discretion to permit media access. The Court further ruled that the Board's rules could not affect the absolute protection provided by the Act, as they were subsidiary to the Act and were, in any event, invalid for various reasons.

When the matter was argued before the Constitutional Court, all parties agreed that section 21(5) of the Act limits the right to freedom of expression. The dispute therefore revolved around the reasonableness and justifiability of limiting the right to freedom of expression (in accordance with the limitations clause contained in section 36 of the Constitution).

Central to the arguments of the media was the importance of freedom of expression, particularly in the context of "open justice". Blanket bans on public access to the proceedings of courts and other public bodies are, it was argued, antagonistic to the democratic principles of transparency, accountability and fair process. Although the limitation serves a legitimate purpose (integrity of the process and the protection of applicants and witnesses), the argument in favour of media access was that these interests would not be detrimentally affected if the Board is entrusted with discretion. This discretion will enable the Board to determine access on a case-by-case basis and will further allow the Board to impose necessary conditions to protect these interests, like witnesses' anonymity.

The material aspects of Mr Krejcir’s asylum application, which he contends are confidential, are furthermore already in the public domain ― largely as result of Mr Krejcir’s own voluntary disclosures.

Should the provision be found unconstitutional, the media houses have requested that the Constitutional Court should 'read in' a discretion to permit media access in cases of exceptional public interest, and that they should be granted access to the hearing of Mr Krejcir's appeal in terms of this discretion.

Mr Krejcir and the State (the Chairperson of the Board and the Minister of Home Affairs) opposed the media's application on substantially similar grounds. They argued that the blanket ban on access is reasonable and justifiable as it serves to protect the confidentiality and security of the asylum seeker and potential witnesses. They also contended that providing the Board with discretion is an unsuitable alternative to the blanket ban as it would deprive asylum seekers of an absolute assurance of confidentiality, which they contended is essential to the integrity of the asylum system.

Webber Wentzel is representing the media applicants in this matter, and is expecting the Constitutional Court to hand down judgment in late 2013.