Judge: Media ban justified in Krejcir case
2012-12-06 20:04
Pretoria - A ban on media attending the refugee appeal
hearing of controversial Czech fugitive Radovan Krejcir was justified, the North
Gauteng High Court in Pretoria ruled on Thursday.
Judge Hans Fabricius dismissed an application by the Mail
& Guardian, Independent Newspapers and Media24 for a court order allowing
them access to the hearing.
Last year, the organisations obtained an interim
interdict to stop the hearing from continuing pending the outcome of their
application for access.
Krejcir came to South Africa via the Seychelles with a
false passport in 2007.
He launched an appeal after his application for refugee
status in South Africa was turned down.
In 2010, the South Gautneg High Court in Johannesburg overturned the
government's refusal to extradite Krejcir to the Czech Republic and ordered
that his case be reheard.
The Refugee Appeal Board turned down applications by the
media organisations to attend Krejcir's appeal hearing on the grounds that all
refugee appeals were heard in secret, and that it had no discretion to allow journalist
to attend.
The organisations contended that the board's rules gave
it the discretion to grant the media access in exceptional cases, but Krejcir
launched a counter-application to have the board's rules declared invalid.
The media organisations argued that Krejcir was a high
profile public figure and that most of the information he now wanted to keep
secret was already in the public domain.
They said the public had an interest in knowing whether a
person such as Krejcir, who was suspected of having links to organised crime in
South Africa, would be granted asylum.
Blanket ban
Fabricius said section 21(5) of the Refugee Act, which
stated that the confidentiality of asylum applications had to be ensured at all
times, was clear from a linguistic point of view.
"'All times' does in my view not mean sometimes.
'Confidential' means not intended for public knowledge," he said.
"In my view the provisions of section 21(5) are
absolute in its content and do not give the board any discretion to allow the
press access in so-called 'appropriate' cases."
He said the section infringed upon the freedom of the
press and other media, and the freedom to receive or impart information or
ideas as provided for by the provisions of the Constitution.
However, he ruled that the blanket ban on access by the
public was justified.
He said the integrity of the asylum system, the safety of
witnesses, the fact that a refugee might be unwilling to return to his country
of origin, the asylum-seeker's privacy and dignity interests and the general
fairness of the asylum-hearing outweighed the limited interest of the
applicants.
Fabricius said whatever crimes Krejcir might have
committed in South Africa were irrelevant, as only crimes committed prior to
entry of the country of refuge were relevant under the provisions of the
Refugees Act.
"According to various newspaper reports of some
weeks ago, all criminal charges were withdrawn against the second respondent
[Krejcir]," he said.
"If any acts committed in South Africa are relevant,
closing the hearing has virtually no impact at all on the right and opportunity
of the media to report on such.
"They would be able to attend any relevant criminal
court hearing."
He said that if there was legitimate public interest to
know on what grounds Krejcir could be granted asylum, then the interest had to
"yield" to more general public interest in the integrity of the
asylum system.
Fabricius also granted Krejcir's counter-application and
declared that the Refugee Appeal Board rules published in the Government
Gazette in September 2003 were invalid.
He said it was clear that the board had no power to make
rules during the period in which the board had not even existed as a legal
entity, and when there had been no empowering legislation in place for it to
act.
- SAPA
