Mail & Guardian Media Ltd and Others v Chipu NO and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Zondo J, Mhlantla AJ and Bosielo AJ
• Judgment Date: 27 September 2013
• Citation: 2013 (6) SA 367 (CC)
• Docket Number: CCT 136/12 [2013] ZACC 32
• Hearing Date: 14 May 2013
• Counsel: G Budlender SC (with A Friedman) for the applicants. G Bofilatos SC (with N Manaka) for the first and third respondents. G Marcus SC (with S Budlender and D Smit) for the second respondent. S Cowen for the amicus curiae.
• Court: Constitutional Court

Zondo J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, Bosielo AJ and Mhlantla AJ concurring):

Introduction F

[1] This is an application for leave to appeal against a judgment and order made by the North Gauteng High Court, Pretoria (high court) on 6 December 2012. The applicants brought an application in the high court against the respondents for various orders. [1] Those orders were G sought on the basis that the Refugee Appeal Board (Appeal Board) had a discretion to allow access to its proceedings. In the event that the court found that the Appeal Board had no discretion to allow access to its proceedings, the applicants sought in the alternative an order declaring that s 21(5) of the Refugees Act (Act) [2] was inconsistent with the right to freedom of expression in s 16 of the Constitution to the extent that it H precluded the Appeal Board from allowing, in appropriate cases, members of the public or the media to attend and report on proceedings of the Appeal Board. The basis of the order declaring s 21(5) inconsistent with

Zondo J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, Bosielo AJ and Mhlantla AJ concurring)

A s 16 was that it constituted an unreasonable and unjustifiable limitation of the right to freedom of expression. The applicants also sought that certain words be read into s 21(5) of the Act so as to cure the alleged constitutional defect.

[2] The high court, through Fabricius J, concluded that, although B s 21(5) of the Act constituted a limitation of the right to freedom of expression, the limitation was reasonable and justifiable as contemplated by s 36 of the Constitution. The court, inter alia, made a declaratory order to that effect. It, accordingly, dismissed the application for an order declaring s 21(5) unconstitutional. This is the order against which the C applicants seek leave to appeal.

The parties

[3] The first applicant is Mail & Guardian Media Ltd which publishes the Mail & Guardian newspaper, a weekly national newspaper. The D second applicant is Independent Newspapers (Pty) Ltd. It publishes various national and regional newspapers. [3] The third applicant is Media 24 Ltd. It publishes several newspapers and magazines that are distributed throughout South Africa. [4]

[4] The first respondent is Mr MJ Chipu, who is cited in his official E capacity as chairperson of the Appeal Board. The Appeal Board's main function is to hear appeals from determinations made by the Refugee Status Determination Officer [5] (RSDO) in applications for asylum. [6] The second respondent is Mr Radovan Krejcir. The high-court application was aimed at securing the attendance of the applicants' journalists at Mr Krejcir's appeal hearing before the Appeal Board and reporting on it. F The third respondent is the Minister of Home Affairs (minister). She is responsible for the administration of the Act.

[5] The Southern Africa Litigation Centre was admitted as amicus curiae (friend of the court). It is a regional human-rights non-governmental organisation that seeks to promote and advance human rights G and the rule of law in southern Africa through research, capacity-building, training and advocacy, and strategic litigation. [7] The amicus filed written submissions and presented oral argument.

Zondo J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, Bosielo AJ and Mhlantla AJ concurring)

Lawyers for Human Rights' application for admission as amicus A curiae and for the admission of new evidence

[6] Lawyers for Human Rights (LHR) brought an application for admission as amicus curiae and for the admission of new evidence. It said that it only sought to be admitted as an amicus if the new evidence would be admitted. LHR's application for the admission of new evidence was made B in terms of rule 31 of the rules of this court, [8] alternatively rule 30 of the rules of this court [9] read with s 22 of the Supreme Court Act. [10]

[7] Rule 30 incorporates the provisions of s 22 into the rules of this court. Section 22 reads as follows:

'The appellate division or a provincial division, or a local division having C appeal jurisdiction, shall have power —

(a)

on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by such division, or to D

Zondo J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, Bosielo AJ and Mhlantla AJ concurring)

A remit the case to the court of first instance, or the court whose judgment is the subject of the appeal, for further hearing, with such instructions as regards the taking of further evidence or otherwise as to the division concerned seems necessary; and

(b)

to confirm, amend or set aside the judgment or order which is the B subject of the appeal and to give any judgment or make any order which the circumstances may require.'

In this judgment a reference to s 22 must be read as a reference to rule 30 read with s 22.

[8] In Rail Commuters [11] one of the requirements applied by this court for C the admission of new evidence under s 22 was that it must be 'weighty and material and presumably to be believed'. [12] It also applied the requirement that there must be a reasonably sufficient explanation as to why such evidence was not presented in the court of first instance. [13] In Bel Porto [14] this court said that its power to accept further evidence D should not be exercised 'unless the circumstances are such that compelling reasons exist to do so'. [15] It follows from this that, if the evidence sought to be adduced in this court under s 22 is not weighty and material or if it is weighty and material but there are no compelling reasons for this court to exercise its power in favour of admitting it, the application E for the admission of the evidence should be dismissed.

[9] In terms of rule 31 an amicus admitted to proceedings in this court is entitled, in documents lodged with the registrar of this court, to canvass relevant factual material that does not appear on the record. However, the factual material must either be common cause or otherwise F incontrovertible or must be of an official, scientific or statistical nature capable of easy verification.

[10] The new evidence that LHR seeks to place before this court relates to —

(a)

how dependent asylum applicants are upon appeals before the G Appeal Board for the ultimate fate of their asylum applications;

(b)

the sensitive nature of asylum claims — this is based on, among others, the nature of persecution to which asylum seekers would have been subjected in their countries of origin;

(c)

credibility assessments of asylum seekers — this deals with the fact that both at first-instance level and at appeal level asylum applicants H will not be able to produce any documentation to support their

Zondo J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, Bosielo AJ and Mhlantla AJ concurring)

claims of persecution and both the RSDOs and the Appeal Board A have to assess their credibility themselves;

(d)

how asylum applications are processed under the Act and how appeals are disposed of by the Appeal Board;

(e)

various documents attached to Ms Ramjathan-Keogh's affidavit, including reports, all of which fall under one or other of the B headings in (a) to (d) above. LHR seeks to furnish international and domestic statistics. Ms Ramjathan-Keogh, who is the programme manager of LHR's refugee and migrant-rights programme and the deponent to LHR's founding affidavit, gives this country's rejection rate in regard to asylum applications at first instance which results in an increased backlog at appeal level. LHR seeks admission of this C evidence in order to show how bad the decisions made by the RSDOs are.

[11] Whether LHR's application is considered under s 22 or under rule 31, the first question that arises is whether the new evidence is relevant. [16] D Under s 22, another question will be whether the evidence is weighty and material. Yet another question under s 22 would be whether LHR has shown that there are compelling reasons for this court to exercise its power in favour of admitting the new evidence and that there is an acceptable explanation why the evidence was not placed before the court of first instance. If the new evidence is found not to be relevant, LHR's E application falls to be dismissed under both s 22 and rule 31. The relevance of the new evidence must be assessed against the issues that we are called upon to determine.

[12] In this case the applicants and the respondents are agreed that in F asylum applications and appeals to the Appeal Board there is a need for confidentiality. Where they differ is on whether or not the confidentiality should be absolute and invariable. In this regard the applicants contend that there is no justification for the confidentiality to be absolute and that the Appeal Board should have a discretion to relax the requirement of confidentiality in appropriate cases. The respondents contend that G absolute confidentiality is required to maintain the integrity of the asylum system and to protect asylum applicants and their families and friends against possible threats or danger to their safety and lives. As is explained later, the issue between the parties translates into an inquiry whether s 21(5) is a reasonable and justifiable limitation of the right to H freedom of expression. I now turn to consider whether the evidence is relevant. This makes it necessary to go back to the headings under which the new evidence falls as set out above. [17]

[13] The evidence referred to in [10](a) above is about how dependent asylum applicants are upon appeals before the Appeal Board for the...