Thousands will get their lives back thanks to court’s ID ruling
Lawyers for Human Rights has welcomed the ruling that Home Affairs is no longer allowed to block identity documents arbitrarily, saying it leads to those affected becoming ghosts in the system. By
In a landmark judgment that has been years in the making, the High Court in Pretoria has declared the Department of Home Affairs’ practice of blocking South African identity documents an unjust and irregular administrative action that is inconsistent with the Constitution.
This comes after Home Affairs Minister Aaron Motsoaledi and director-general Livhuwani Makhode were taken to task by an affected permanent resident and civil society organisations Lawyers for Human Rights, Legalwise South Africa and the Children’s Institute, after the department went on a widespread campaign to block IDS it deemed suspicious and fraudulent.
The application was initially brought forward by Eswatini citizen Phindile Mazibuko, who has lived in South Africa since 1998. She had her ID blocked by Home Affairs and was under threat of having her permanent residency revoked.
Lawyers for Human Rights and Legalwise South Africa applied to be joined as an applicant in the matter as a matter of public interest and to have their clients’ IDS unblocked. The Children’s Institute was admitted as a friend of the court.
The applicants argued that the practice of blocking identity documents was unconstitutional because it left the affected parties in a state of statelessness.
Perhaps perfectly summed up in Lawyers for Human Rights’ founding affidavit, the
organisation argued that the blocking of IDS in effect prevents those affected from engaging with the world.
“They become ghosts in the system – they cannot obtain passports and travel, they cannot access education and healthcare, they cannot open or access bank accounts,” the civil society organisation argued.
The consequences of the practice extend far beyond the affected adults, hindering the quality of life of children whose parents have had their IDS blocked.
Id-blocking campaign
The issue dates back to May 2012 when the department went on a drive to address the issue of duplicate IDS on the National Population Register.
What started out as 29,000 identity documents having markers placed against them quickly escalated to more than one million by 2020.
At the time when the application was heard, the department had unblocked 1.8 million IDS. However, more than 700,000 remained blocked.
The department framed the practice as an administrative tool that was necessary to maintain the accuracy and integrity of the National Population Register and combat suspected fraud and manipulation.
However, Lawyers for Human Rights condemned the practice, claiming that blocking identity documents had become increasing
ly arbitrary, with criteria that seemed subjective and discriminatory.
Home Affairs’ reasons for blocking IDS included the shape of inoculation marks, records of frequent cross-border travel, alleged deportation records, inability to speak a specific local language, bearing a foreign-sounding name, or having a parent or spouse of foreign descent.
Another point of contention was that the department did not follow fair administrative processes before blocking IDS.
Many of the IDS had markers placed against them that resulted in the documents being blocked without prior notice to the affected individuals, depriving them of the opportunity to plead their case and provide information before being blocked.
Blocking of IDS declared unconstitutional
In passing down the judgment, Judge Elmarie van der Schyff said the director-general had a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID.
However, she added that doing so without following just administrative procedure was mischievous.
Judge van der Schyff said that a mere suspicion that an identity document was fraudulent did not justify placing a marker on it or blocking it, unless this was authorised through a court order. She added that the department jumped the gun.
In an answering affidavit, the department conceded that the identity documents were blocked without a fair and just administrative process, admitting that it was inconsistent with the Constitution.
It informed the court that it had developed a procedurally fair and transparent system, which has since been implemented. However, the system still entails the placing of markers against or blocking of IDS.
The department has been ordered to determine whether unblocking the IDS currently blocked will constitute a security risk and to determine the status of Lawyers for Human Rights and Legalwise clients within 90 days.
The declaration has been suspended for 12 months, giving the department time to comply with the order.
‘A first step’ – Lawyers for Human Rights
Touching on the Constitutional Court’s emphasis that the systematic act of stripping millions of black South Africans of their citizenship was one of the most pernicious policies of the apartheid regime, which left many as foreigners in the land of their birth, Lawyers for Human Rights welcomed the ruling.
Speaking to Daily Maverick, its legal consultant for statelessness, Palesa Maloisane, said: “Lawyers for Human Rights is happy that the court has agreed to order the department to ensure a just and fair process that is in line with the Constitution and the Promotion of Administrative Justice Act, particularly because identity document blocking can result in statelessness as it effectively strips affected individuals of their citizenship and dignity.”
Maloisane added that the organisation hoped the judgment would be considered seriously by the department and result in the swift resolution of the cases of Lawyers for Human Rights’ clients, particularly when children are involved.
“The case is a great success and first step in enabling all those affected to begin getting their lives and dignity as citizens back.
“Many clients have waited patiently for a resolution and will hopefully have the opportunity to access services that are crucial to citizenship and part of their daily lives,” Maloisane said.
Reasons for blocking IDS included the shape of inoculation marks,
inability to speak a specific local language, or having a parent or spouse of foreign descent