Constitutional Court judgment declaring section 21(5) of the Refugees Act invalid; Committee Strategic Plan; Gauteng Oversight Report

Meeting report

Constitutional Court judgment in the Mail and Guardian Media Limited and Others v Chipu NO and Others CCT136/12 [2013] declaring section 21(5) of the Refugees Act invalid
Ms Daksha Kassan, Parliamentary Legal Advisor, noted that on 27 September 2013 the Constitutional Court declared section 21(5) of the Refugees Act 130 of 1998 inconsistent with the freedom of expression rights entrenched in section 16 of the Constitution, more precisely, section 16(1)(a) – freedom of the press and other media and – freedom to receive and impart information or ideas.

Section 21(5) of the Refugees Act provided that ‘the confidentiality of asylum applications and the information contained therein must be ensured at all times.’ The Court held that the provision was invalid because it precluded members of the public or the media from attending proceedings of the Refugees Appeal Board in all cases and failed to confer discretion upon the Refugees Appeal Board to allow the public and media access to its proceedings in appropriate cases.

The applicants (Mail and Guardian, Independent Newspapers and Media 24) brought matter to Constitutional Court as appeal against the order made by the North Gauteng High Court. They sought an order confirming that the RAB had discretion to allow access to its proceedings. In the alternative, they sought an order declaring section 21(5) of the Refugees Act to be inconsistent with section 16 of the Constitution to the extent that it precludes the RAB from allowing, in appropriate cases, members of the public or the media to attend and report on the proceedings of the RAB. They argued that section 21(5) of the Refugees Act constituted an unreasonable and unjustifiable limitation of the right to freedom of expression; and that certain words be read into section 21(5) to cure the alleged remedy. The High Court concluded that although section 21(5) of the Act constituted a limitation of the right to freedom of expression, the limitation was reasonable and justifiable as contemplated by section 36 of the Constitution. Hence, the High Court dismissed the application for order declaring the provision unconstitutional.

On appeal, the applicants argued that there was no justification for the confidentiality to be absolute and that the RAB should have discretion to relax the requirement of confidentiality in appropriate cases. The respondent argued that absolute confidentiality was 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.

The Constitutional Court set aside the decision of the High Court and declared invalidity of the provision suspended for a period of two years from the date of the order to enable Parliament to correct the constitutional defect in section 21(5). It provided a temporary read-in provision that would be in effect pending the correction of the defect, or expiry of the two-year period whichever occurred first. Section 21(5) was now to be read as follows:

(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
(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;
(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.”

Discussion
The Chairperson remarked that the Refugees Act had a reading-in provision which was working as a temporary measure until the anomaly was corrected by the Committee. It had been given a period of two years to correct it, which ran from September 2013 to September 2015. There had been engagement with the Department of Home Affairs (DHA) which advised the Committee to wait until the comprehensive amendment of the entire legislation was tabled. It was supposed to have been tabled in April 2015 but there were some legal technicalities that was preventing it from being tabled very soon. In that case, it seemed that there was no other way to resolve this than invoking the parliamentary rule mandating the Committee to correct anomalies or defects in law. Should the Committee wait for DHA to table a new Refugees Amendment Bill? There was a possibility that DHA would brief the Committee on progress in amending the refugee legislation in the following week.

From a duty of parliament perspective, the Committee should continue and do the right thing because the DHA was not ready with the amended legislation. The Committee should move fast because there was no time left. The amendment of the provision once passed by Parliament needed to be sent to the President to be assented to in order for it to come into force before the deadline.

Mr M Hoosen (DA) asked if the Chairperson was implying that DHA might not allow the Committee to correct anomalies and if the Committee would be briefed on amending the entire legislation in a coming week.

The Chairperson responded that DHA had not yet taken steps towards tabling the proposed Amendment Bill. This was supposed to have been done in April. It was now May and the proposed amendments had not been tabled with Cabinet. Parliament was in dilemma on how to deal with the situation. This could however be resolved in terms of the Rules of Parliament which allowed it to remedy the defect in a law. By the next week, the Committee would get clarity on way forward.

Mr Hoosen remarked that he had read the judgement and the Constitutional Court had valid arguments. He sought clarity on why the DHA spent too much on litigation when, in most cases, it lost. Why did the State Attorney choose to fight this case? The crux was whether the RAB could refuse access to its proceedings by a third person on the basis of confidentiality. So, what was the cost of this judgment? He said that it was in the interest of the public interest to review the legal cost.

The Chairperson disagreed. He remarked that the Committee was sitting with a ruling instructing the Committee to correct an anomaly. The meeting was not about reviewing the merit of the judgment or the rationale behind the decision to fight the case. These kinds of questions could be asked when the DHA was present. He advised Mr Hoosen to write a letter to the Minister containing all the questions that needed answers.

Mr Hoosen reiterated that he felt that it was imperative to review the legal costs because whatever the cost might be, it was so high. He did not ask to review the judgment.

The Chairperson said that his position on the matter was not going to change. The Committee should respect the separation of powers and refrain from reviewing every decision made by the executive. A letter was a viable mechanism to get all information that was needed. It should be recalled that the judgment was handed down in 2013.

Ms D Raphuti (ANC) said that the DHA went to court because they felt that it was doing a good thing which was protecting the integrity of an asylum-seeker. On the other hand, the judgement assisted the DHA to see where there were gaps in the asylum law.

Mr D Gumede (ANC) commented that the Committee was in the midst of a very complex interaction on immigration, which also encompassed the problems of xenophobia. A lot had happened which could not be ignored. It should be particularly understood that refugees were not only regulated by national policies, but international law as well. It should also be borne in mind that the Committee had been tasked to correct an anomaly in the refugee law within a period of two years. The matter was being looked into only four months prior to the deadline. Members were aware that this matter was being considered at a critical time when policing migration was a challenge. The task of curing the constitutional defect should be approached carefully. Members were therefore faced with the questions: Should the Committee plea with the Constitutional Court to extend the temporary reading-in provision to allow enough time for the Committee to remedy the section. Would another period of one year suffice? Should the Committee wait for the DHA to table the proposed entire Amendment Bill for consideration and adoption?

The Chairperson said that the questions raised by Mr Gumede could be given good answers if the DHA was present. The Committee and the DHA together could find a clear response to these questions. To request the Constitutional Court to extend the remedy timeframe would be difficult as it was not a simple request for postponement, rather a request needed valid and reasonable justifications. The way forward would be decided in the following meeting in which the DHA would be present.

Mr Hoosen was concerned as he sensed the Chairperson and his colleagues were defending the DHA on its reckless expenditure of resources on litigation. The mandate of the Committee included to hold to account the departmental officials. He felt that the issue of legal costs should be discussed.

The Chairperson insisted that the matter being raised by Mr Hoosen was not on the agenda and Mr Hoosen was diverting the Committee from discussion on items on the agenda.

Ms Raphuti agreed and sought clarity on what the phrase “the Chairperson and his colleagues” meant and who these colleagues were.

The Chairperson concluded that this matter would be dealt with sufficiently in an upcoming meeting.

Committee Strategic Plan and Annual Performance Plan
Mr Adam Salmon, Committee Content Advisor,  spoke about the strategic objectives, mandate and key priorities of the Committee.

The Chairperson remarked that the Strategic Plan came from the Committee’s strategic workshop. He welcomed Members to note any issues that might have been left out. He reminded members that the Strategic Plan had be given a thumps-up even though few changes had been made.

Mr Gumede suggested that the matter raised by Mr Hoosen should be incorporated to allow a discussion on DHA litigation.

The Committee approved the Strategic Plan.

The Chairperson declared the document officially adopted and it would be sent to each member.

Consideration and adoption of the Gauteng Oversight Report
The Chairperson read the full report. Members were requested to include points that might have been left out of the report. The report had been in the hands of the Committee for a long time and should have been tabled in the National Assembly. Despite its delay, he suggested that the report be dated 12 May 2014. Minor amendments were suggested, particularly the language of recommendations that were needed to convey an urgent response.

The Committee adopted the report.

The Chairperson declared that the report was adopted and asked if there was a need to debate on the report or whether it should merely be tabled.

Mr B Nesi (ANC) felt that since the report had been in the hands of the Committee for a while and Members were in agreement with its content, there was no need to debate it; rather it should merely be tabled.

The Chairperson agreed.

Consideration and adoption of the minutes
The minutes of 28 April 2015 were considered and adopted with amendments.

Meeting was adjourned.