• Two court rulings ordered the Department of Home Affairs to unblock IDs.
• One case involves more than 100 applicants whose ID numbers were blocked.
• In another case, a man lost his job as result of the department’s actions.

The Department of Home Affairs has not complied with two court rulings which found the unilateral “blocking of IDs” to be unfair and illegal.

In January this year, Judge Elmarie van der Schyff said in the Gauteng High Court in Pretoria that ID blocking without notice, timeous investigation and appeal processes was unconstitutional, GroundUp reported.

While she suspended her ruling for a year to give Home Affairs time to sort out its processes, she ordered that the department must, within 90 days, determine the status of the more than 100 applicants in the matter. 

The applicants were represented by Lawyers for Human Rights (LHR) and LegalWise.

Van der Schyff also ordered the immediate removal of any blocks on children whose parents’ status as South African citizens or permanent residents have not been finally revoked.

READ | SA to get ‘refreshed’ smart IDs and passports, says new Home Affairs minister

But LHR said this order had not been complied with and it intended to launch contempt proceedings against the department. 

LHR legal consultant Palesa Maloisane added following the order, LHR had given the department a list of its clients but only received inadequate correspondence on 4 July – after the 90-day deadline.

She said some clients had reported during the 90-day period, the department issued them with letters requesting they make representations on the status of their IDs, with supporting documentation, within 14 days, failing which their ID numbers would be cancelled.

Maloisane added:

She said the pending contempt application would be raised at an upcoming case management meeting with Van der Schyff.

In the meantime, Maloisane said, many IDs remained blocked, and their clients struggled to get birth, marriage and death certificates.

“Sometimes ID blocking can even lead to citizenship stripping and statelessness, especially when the reason for blocking the ID is linked to an allegation that you are not a South African citizen,” she added.

On 14 June, fraud investigator Fhatuwani Sibanda secured a court order reviewing and setting aside the decision to block his ID, the judge noting his South African citizenship was “crystal clear”. 

Gauteng High Court Judge Mabaeng Lenyai ordered the department to lift the block within 15 days, and officials must give him back his smart ID card and passport, which had been confiscated.

But Sibanda’s attorney confirmed the ID was still blocked and his passport still “marked”.

Mukhethwa Nthambeleni told GroundUp:

He said his client’s situation was untenable.

According to Lenyai’s judgment, Sibanda was first granted an interim interdict in November 2021, ordering the department to reinstate and uplift the block on his ID.

But this order was also not complied with.

He returned to court for the final order. The department filed its opposing papers almost two months late.

The reasons given by the director-general for the delay “displayed a lack of regard for the interests of [Sibanda] and his family”, the judge noted, refusing to condone the delay for the late filing.

“The nature of the relief sought deals with issues of citizenship which require all concerned to act swiftly to resolve the matter…

“He [Sibanda] has been stripped of his rights as a citizen. He cannot freely travel anywhere without his passport and his smart ID card.

“His livelihood has been adversely affected and both he and his family are suffering immensely for as long as the matter remains unresolved,” Lenyai said.

Sibanda added his mother was South African and he was born here, saying he was also married to a South African and had four children.

After his birth, his mother married a Zimbabwean and at some point, the family moved there. He went to school there and then returned to South Africa after completing his O-levels.

Sibanda studied further in South Africa, attaining a BCom in business management, and worked as a fraud investigator at several firms and finally got a job at Eskom.

However, the issue was raised again after he joined the South African Forestry Company.

Sibanda was subsequently interviewed by department officials who instructed him to surrender his ID and passport.

He then took it upon himself to conduct a DNA test which proved his mother was his mother.

Sibanda applied to the director-general to unblock his card but was informed this had been rejected.

Lenyai said she was convinced, after a careful consideration of the issues, Sibanda was South African “and his birthright was crystal clear”.

The judge added Sibanda had been suspended, and later dismissed from his work for not disclosing he was not South African, and “remains unemployed to this day”.

He was unable to support his family and ailing mother. 

Sibanda’s daughter had been unable to register to study nursing because of his status.

“He does not have the freedom of movement and is now regarded as an undesirable, an illegal foreigner.”

Further, Lenyai said, his entire family had now been threatened with status verification.

She reviewed the decision to block and suspend his ID, declared he was a South African citizen and ordered the department to pay costs of both the interim interdict and the final interdict on a punitive scale.

Home Affairs did not respond to a request for comment.