Mail and Guardian Media Limited and Others v Chipu NO and Others

Three major media houses sought access for journalists to attend and report on the asylum appeal hearing of Mr Radovan Krejcir before the Refugee Appeal Board. The Board refused access on the basis that section 21(5) of the Refugees Act 130 of 1998 requires asylum proceedings to be confidential. The applicants challenged this refusal in the High Court, contending either that the Board had a discretion to permit access or, alternatively, that section 21(5) was unconstitutional because it unjustifiably limited the right to freedom of expression under section 16 of the Constitution. The High Court held that although section 21(5) limited freedom of expression, the limitation was reasonable and justifiable under section 36 of the Constitution. The applicants sought leave to appeal to the Constitutional Court. During the proceedings, Lawyers for Human Rights applied to be admitted as amicus curiae and to introduce new evidence.

Leave to appeal was dismissed. Section 21(5) of the Refugees Act was upheld as constitutionally valid. The applications by Lawyers for Human Rights for the admission of new evidence and for admission as amicus curiae were dismissed.

The case affirms the constitutionality of strict confidentiality in asylum and refugee appeal proceedings in South Africa and clarifies that the Refugee Appeal Board has no discretion to relax this requirement. It underscores the balance between freedom of expression and the protection of vulnerable asylum seekers, and reinforces South Africa’s international law obligations in refugee matters.