Daily Maverick

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

- Lerato Mutsila

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

 ?? ?? The High Court in Pretoria handed down a landmark judgment on 16 January declaring the Department of Home Affairs’ practice of blocking IDS unjust and inconsiste­nt with the South African Constituti­on. Photo: Deaan Viviers/foto24/gallo Images
The High Court in Pretoria handed down a landmark judgment on 16 January declaring the Department of Home Affairs’ practice of blocking IDS unjust and inconsiste­nt with the South African Constituti­on. Photo: Deaan Viviers/foto24/gallo Images

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