The Parliamentary Legal Advisor briefed the Committee on the consequences that might occur if the Committee failed to comply with the Constitutional Court order in time. She said that the reading-in remedy in the section 21(5) of the Refugees Act, 1998 would come to an end on 26 September 2015 and, as a result, the provision would become invalid. Either the Department of Home Affairs or the Committee has the power to remedy the constitutional defect. The Committee should urgently act in terms of the Rules of National Assembly to correct the constitutional defect before it came invalid.
The Chairperson said that he had engaged with the Minister of Home Affairs who was happy that the Committee should go ahead and remedy the defect because the Department of Home Affairs was not ready with its more extensive amendments to the Refugees Act. In that regard, a memorandum on the legislative proposal had been prepared for members to consider and adopt. The suggestion to request the Constitutional Court to extend a period of two-years of reading-in remedy was turned down by the Chairperson on the ground that there was not any reasonable justification that caused the delay to correct the defect. The Committee did not attempt to remedy the defect in the past 18 months. The memorandum requested permission from the National Assembly to introduce the amendment of the provision in question. The Committee adopted the memorandum without reservation.
The Chairperson explained that the meeting would consider the decision of the Constitutional Court in the case of Mail and Guardian Media Limited and Others v MJ Chipu and Others CCT 136/12  which ruled section 21(5) of the Refugees Act (No. 130 of 1998) as unconstitutional. In its previous meeting, the Committee agreed to engage with the Department of Home Affairs to seek clarity on whether the Committee should proceed and correct the constitutional defect. It should be noted that the Refugees Act was amended in 2008 and 2011 but the amendments had not yet operationalised. The Parliamentary Legal Advisor would advise the Committee on how to deal with this constitutional defect. She would also brief the Committee on the consequences of the Constitutional Court ruling.
Briefing by the Parliamentary Legal Advisor on Refugee Amendment Bill, 2015
Ms Daksha Kassan, Parliamentary Legal Advisor, noted that Mail and Guardian had challenged the constitutionality of section 21(5) of the Refugees Act which conferred an absolute confidentiality on Refugee Appeal Board (RAB) proceedings. The Constitutional Court ruled in favour of the Mail and Guardian and declared the provision to be unconstitutional. It however provided an immediate reading-in remedy which, as a result, allowed the media and the public access to the RAB proceedings in appropriate cases. The ruling was handed down in 2013. It ordered the Parliament to correct the defect with two years as from the date of the judgment. The two-year period would come to an end on 26 September 2015. If the two-year period elapsed without rectifying the constitutional defect, there would be a gap in the refugee law as the order of invalidity would come into action. That meant that section 21(5) would be unconstitutional – simply because the reading-in remedy provided by the Court would no longer be available. There were two ways to correct the defect. The first way was for the executive to table the amendment bill that would correct the defect before the two-year period came to an end. The second way was for the Committee to table the amendment bill that would correct the defect in time.
The Chairperson remarked that correction of the anomaly was no longer debatable. The correction was a technical amendment which ought to be effected to allow a third party access to RAB proceedings. In his engagement with the Minister of Home Affairs, the Minister agreed that the defect should be corrected by the Committee. His department was not ready with the drafting of the detailed amendment of the Act involving various sections of that Act.
Mr Steenhuisen sought clarity on whether the Court should be requested to extend the time period of the reading-in remedy.
The Chairperson responded that the time left was too critical. To request an extension was not a viable option because such a request ought to be reasonably justified. Yet, it was highly likely that a request for extension could be filed and the request could be considered at later stage if the two-years period had elapsed. The Committee should consider avoiding a gap in law.
The Chairperson welcomed Ms Kassan to advise the Committee on the steps that should be taken.
Ms Kassan stated that the Committee should submit a legislative proposal to the House (via the Speaker), requesting the permission of the House, in terms of Rule 230(1), for the Committee to introduce its legislative proposal: Refugees Amendment Bill, 2015. She went on to read the prepared memorandum on the legislative proposal, drafted in terms of rule 238 of the Rules of National Assembly. In reading the memorandum, she stated that the purpose of the Bill was to amend the Refugees Act, 1998 so as to confer discretion upon the Refugee Appeals Authority (RAA) to allow the public and media access to its proceedings in appropriate cases. In other words, the Bill would address the Court’s ruling of unconstitutionality by amending section 21(5) of the Refugees Act, 1998. She noted that it was not foreseen that the proposed legislation would lead to any expenditure for the state.
The Refugees Act of 1998 referred to the Refugees Appeal Board (RAB), whereas its 2008 Amendment Bill referred to the Refugee Appeal Authority (RAA). The latter should be retained in the proposed legislation irrespective of the fact that the amendment was not yet operational. That approach was compatible with the rules of the National Assembly. The previous amendments to the Refugees Act should be considered as if they are operational when subsequent amendments are made.
The Chairperson welcomed Members to read memorandum and consider it for an adoption. He reminded Members that the purpose of the Bill was to give power to the RAA to open its door to the public or to close it under certain circumstances.
Memorandum for Committee Bill: Refugees Amendment Bill, 2015
Members considered the memorandum paragraph by paragraph. Minor changes were effected.
Mr B Nesi (ANC) moved to adoption of the memorandum with amendments. Ms D Raphuti (ANC) seconded him.
The Chairperson declared that the Memorandum was adopted after asking whether there was any member who wished to register a reservation. No member came forward.
Consideration and adoption of the minute
The minutes of 5 and 12 May 2015 were considered and adopted with minor amendment.
[Apologies: Ms S Nkomo (IFP) and Mr A Figlan (DA); Mr J Steenhuisen (DA) noted as an official committee member]
- Mail and Guardian Media Ltd and Others v Chipu, NO, Chairperson of Refugee Appeal Board & others (22645/2011)  ZAGPPHC 341 (6 December 2012)
- Refugees Act 130 of 1998
- Parliamentary Legal Advisor presentation on the Constitutional Court judgement.
- Committee Memo requesting introduction of Committee Bill: Refugees Amendment Bill