The section in the Act must be interpreted before the regulation is looked at and, if the regulation purports to vary the section as so interpreted, it is ultra vires and void. It cannot be used to cut-down or enlarge the meaning of the section Cockreli SC on behalf the Applicants preferred to deviate somewhat from his written heads of argument, by dealing with the review application in the context of the provisions of Rule 14 1.
In the heads of argument the relevant constitutional framework was dealt with first, and Mr. Marcus SC, correctly in my view, adopted the approach that the starting point was the interpretation of section 21 5 of the Act in the proper context. In law, context is everything in life also, but I must not be read to declare that law and life are two separate concepts.
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Aktiebolaget Hassle and Another v Triomed Pty Ltd 1 SA SCA at , where Nugent JA said that in law this was so, when it comes to construing the language used in documents, whether the document be a statute, or a contract, or something else. The Constitutional Court has also said that the overall context of an Act is important in an interpretive exercise. Apart from the context of any given statute, or section thereof, a court must of course interpret legislation as per the provisions of section 39 2 of the Constitution. Interpretation seeks to give effect to the object or purpose of legislation, and involves an inquiry into the intention of the legislature.
It is concerned with the meaning of words without imposing a view of what the policy or object of legislation is or should be. In that decision it was made clear that whilst recognising the need to give effect to the object and purpose of legislation, it was not the function of a court to do violence to the language of a statute. In any event, the ordinary meaning of words used in a statute or in a section must be interpreted, and in interpreting statutes within the context of the Constitution, will not require the distortion of language so as to extract a meaning beyond that which the words can reasonably bear.
It does, however, require that the language used be interpreted as far as possible, and without undue strain, so as to favour compliance with the Constitution. This in-turn will often necessitate close attention to the socio-economic and institutional context in which a provision under examination functions. Applicants, in the context of section 21 5 of the Act submitted that it infringed upon the rights contained in section 16 1 of the Constitution, which deals with freedom of expression, the freedom of the press and freedom to receive or impart information or ideas.
With reference to a number of decisions of the Constitutional Court it was submitted that freedom of expression lies at the heart of democracy, and that individuals in society needed to be able to hear, form and express opinions and views freely on a wide range of matters. The media had a particular role to play in protecting the right, and were in fact key agents in ensuring that the provisions of s16 1 of the Constitution were complied with, enforced and respected.
In S v Mamabolo supra at par 28 and29 the following was said in this context: Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, free of the more important aspirational attributes prescribed for the judiciary by the Constitution It is the keenest spur to exertion and the surety of all guards against improbity.
It keeps a Judge himself, while judging, under trial. Bofilatos SC on behalf of the First and Third Respondents had any problems with these submissions, or needed to be converted in that regard. It was also pointed out that the open justice concept was applied to many other public bodies such as commissions of enquiry, misconduct proceedings of various professional councils, liquidation enquiries ect.
The result was that the goal of the present application was to advance two democratic imperatives, namely the goal of ensuring that the public has access to information which engage the public interest, and the need to allow scrutiny of the decision-making process when it would be in the public interest to do so. Accordingly the submission was that the public interest in particular plays a core role in the analysis in terms of section 16 of the Constitution, and particularly, the analysis of whether any limitation of the rights protected by section 16 was justified.
Section 21 5 is in my view clear from a linguistic point of view. The confidentiality of asylum applications and information contained therein must be ensured at all times.
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The suggestion was that confidentiality only applied to the initial stages of any asylum application, and that in line with the injunction that a court must interpret a section that would permit constitutionality and in the present context comply with the provisions of section 16 1 of the Constitution, it meant in the present instance that the Board ought to have a discretion to allow the media to be present during the relevant appeal hearing of Second Respondent. Applicants made great play in the founding affidavit and again in their reply, that the Second Respondent was a public figure at his own instance.
He gave interviews, sought interviews and attracted attention to his way of life, apart from the evidence that he gave in previous court hearings. Whilst he contended that international law required asylum applications to be kept confidential for a number of reasons which I will deal with in a moment, it was Applicants' case that access to the Appeal Board hearing was justified on the facts of this case. Second Respondent contended, not surprisingly, that it could never be permitted to allow media access to a refuge appeal, whatever the facts and circumstances of the case.
Applicants in turn submitted that this absolute position was no more sustainable than would be an absolutist claim by the media of the right of access to every refugee appeal. The purpose of an appeal hearing was to establish the truth, and a secret hearing undermined the ability of the Board to establish the truth or conversely open hearings facilitated the establishment of the truth. A witness who knew that his evidence would be open to scrutiny by others would be less likely to submit untruthful evidence.
A ban on access therefore facilitated dishonesty.
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The conclusion was that a blanket statutory secrecy in respect of refugee appeals was inconsistent with the Constitution and accordingly invalid. On behalf of all of the Respondents it was contended that such argument lost sight of the express wording of section 21 5 , the context of refugee law generally as well as its statutory context in South Africa.
In order to give effect to these international obligations, South Africa enacted the Refugees Act. The applicable treaties were therefore incorporated into domestic law. Tantoush supra at par The purpose of refugee law, and in particular the Refugees Convention and the Refugees Act is to protect persons who are in danger of, or vulnerable to, persecution on the specified grounds. It was against the backdrop of these rights that section 21 5 of the Refugee Act must be interpreted to give affect to confidentiality at all stages of the asylum application process.
I agree with that approach. The Supreme Court of Appeal has emphasised in this context that refusing a refugee entry to this country, thereby exposing her or him to the risk of persecution or physical violence in his home country, is in conflict with the fundamental values of the Constitution. I have mentioned the relevant constitutional rights being contained in sections 10,11,12,14 and 33 of the Constitution and PAJA.
Section 6 can therefore not be interpreted in isolation, and not only with reference to its own wording, but as I have said, within its statutory context and in order to give effect to the purposes of the Act generally. I have mentioned the relevant authorities which support this approach. Respondents also argued that it was important to understand the purpose and function of confidentiality in the context of refugee law as interpreted and practiced internationally.
One must therefore read the words contained in section 21 5 in the context of the Act as a whole, and in the light of all relevant circumstances. Respondents quite correctly submitted that it was important to understand the purpose and function of confidentiality in the context of refugee law as interpreted and practiced internationally. Confidentiality of proceedings at every stage of asylum proceedings was a feature of refugee law in virtually every major jurisdiction. Confidentiality was important so that the applicant could fully explain his case, opinions and feelings, discuss the relevant circumstances, his trauma and fears, whilst being reassured that confidentiality was respected so as to ensure the required openness on one hand, and the safety of the applicant, his family and witnesses on the other hand.
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Reference was also made to the United Nations advisory opinion to the Japanese Government of 31 March which emphasised the importance of confidentiality at all stages of the relevant proceedings, including all administrative and judicial review proceedings. In the context of section 16 1 of the Constitution, Respondents briefly argued that it was wrong to transplant the "open justice" principle to the present Appeal Board hearing which is a body established for a particular purpose in line with international law and obligations.
During argument however Mr. Marcus SC agreed that the provisions of section 21 5 of the Act infringed the rights contained in section 16 1 of the Constitution, and then proceeded to deal with the limitations analysis. In my view the provisions of section 21 5 are absolute in its content and does not give the Board any discretion to allow the press access in so-called appropriate cases.
It therefore cannot also co-exist with the second sentence of Rule 14 1 , that I have already referred to. I therefore declare that section 21 5 of the Refugees Act of infringes 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 section 16 1 of the Constitution. It is convenient to refer to this provision.
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Section 36 of the Constitution provides: The nature of the right: Before I deal with these limitation considerations, I deem it necessary to refer to certain of the factual allegations contained in the affidavits before me. Applicants classified the Second Respondent as a public figure, and they gave numerous facts emanating from his evidence in his bail application and the extradition proceedings.
They accordingly alleged that most facts relating to his unlawful activities both in South Africa and in other countries are already in the public domain. They do not rely on the truth of those allegations or the accuracy of certain media reports which were attached to the founding affidavit, but say that the media reports show the nature of the speculation that is currently in the public domain about the Second Respondent.
They submitted that it was clearly of manifest public interest to know the grounds on which he is refused or granted an asylum-seeker permit. They say that at the very least the following facts cannot be denied: Some of these allegations involve alleged links with a person involved in taw enforcement at a senior level;.
Other arguments were made in the founding affidavit concerning the importance of the freedom of the press and the right of the public to be fully informed, an analysis of the Refugee Act itself, and various other submissions relating to the principles of open justice and freedom of expression. Inasmuch as the present section 21 5 imposes a blanket ban on public access or media access, Applicants accept that there may be instances where it would be inappropriate for access to be granted to an RAB appeal.
It is for that reason that RAB is vested with a discretion whether to grant access, or ought to have that discretion. They also accept that the principles of open justice and freedom of expression are not the only important constitutional principles that may be taken into account by the RAB when deciding whether to grant access.
They submit however that on the facts of this case there are no counter-veiling principles which will have the affect of out-weighing the importance of open justice, and the right of members of the public to receive information in the public interest. Solly Msimanga to step down as Tshwane mayor. It is expected that the speaker of council, Katlego Mathebe, will take over from Msimanga as mayor. National Paddy Harper , Thanduxolo Jika Investigators have been scathing about Housing Development Agency executives.
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In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose. I now proceed to the justification analysis. Nature and importance of the right. The right which section 21 5 limits is the right to freedom of expression, particularly freedom of the press and other media and freedom to receive or impart information or ideas. The right is not confined to the press and other media.