Dept cannot block IDs on a whim – court

The blocking of IDs by the department of home affairs – without notice, timeous investigation or appeal processes – has been declared unconstitutional.

Judge Elmarie van der Schyff of the High Court in Pretoria said the director-general had a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID. But to block an ID without following any just administrative procedure “constituted a mischief”.

The case before her was brought by Phindile Mazibuko, who had been personally affected by ID blocking, Lawyers for Human Rights and LegalWise South Africa, with the Children’s Institute being admitted as an amicus curiae. It was opposed by the minister and the director-general of home affairs.

The applicants argued that hundreds of people had complained that their IDs had been blocked, without prior notice and with no reasons given.

They could not obtain passports, could not vote, could not access healthcare, education or open bank accounts. Their children, who were linked to the IDs, suffered similarly.

Van der Schyff, in her ruling this week, said the department had submitted that ID blocking was to prevent foreign nationals abusing systems to access benefits reserved for South African citizens and permanent residents.

The department placed a “marker” next to an ID which automatically resulted in the ID numbers being blocked, without advising the affected party, despite all of its prejudicial consequences.

The judge said lawyers for the respondents had submitted that the department had recently unblocked more than 1.8 million IDs but, at the time of the application hearing (September 2023), there were still 700 000 blocked IDs.

During the litigation, and relatively close to the trial date, the respondents had conceded that blocking IDs without a fair and just administrative process was inconsistent with the constitution. They said that home affairs was developing a procedurally fair and transparent process.

But the court still had to consider whether or not there was any legal justification for ID blocking at all.

The judge said the existing legal framework did not provide for placing a marker against an ID that would result in the concerned individual’s ID being blocked during the investigation stage. Mere “suspicion” did not justify this unless it was authorised by a court order.