• A woman and three organisations took Home Affairs to court for blocking IDs without following a just administrative process.
• About 700 000 IDs were blocked as of September 2023, meaning people with these IDs could not obtain passports, vote, access health care, access education or open bank accounts. Their children, who are linked to the IDs, suffered similarly.
• This week, the Gauteng High Court in  Pretoria found that Home Affairs has been acting unconstitutionally. Judge Elmarie van der Schyff gave the department 12 months to remedy the situation.

The blocking of IDs by the Department of Home Affairs without notice, timeous investigation and appeal processes, has been declared unconstitutional.

High Court Judge Elmarie van der Schyff said the Home Affairs director-general has a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID, however, blocking someone’s ID without following any just administrative procedure “constitutes a mischief”.

The case before Van der Schyff was brought by Phindile Mazibuko, who had been affected by ID blocking, as well as Lawyers for Human Rights and LegalWise, with the Children’s Institute being admitted as a friend of the court.

It was opposed by the minister and director-general of Home Affairs.

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

They could not obtain passports, vote, access healthcare, access 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 the blocking of IDs was meant to prevent foreign nationals from abusing systems to access benefits reserved for South African citizens and permanent residents. The department placed a “marker” next to affected IDs, which automatically led to the ID numbers being blocked without advising the affected parties, who suffered prejudicial consequences.

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

During the litigation, and relatively close to the trial date, the respondents conceded that blocking IDs without a fair and just administrative process was inconsistent with the Constitution. They said Home Affairs was in the process of 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.

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“Having regard to the director-general’s responsibility to protect the integrity of the national population register, I am of the view that the placing of a marker against an ID to establish if it needs to be investigated cannot be faulted.

“The issue arises, however, when placing a marker prejudicially affects the individual to whom the ID was assigned without following just administrative procedures,” the judge said.

Van der Schyff said this was tantamount to “seizing” an ID without any proper investigation or communication with the affected person.

She 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.

This means “suspicion” does not justify blocking an ID unless the action is authorised by a court order.

“Such conduct stands to be reviewed. I am of the view that the blocking of IDs is justified after a fair administrative procedure is followed and a final decision is taken to revoke, cancel or withdraw the ID under applicable legislation.

“It is the [Department of Home Affairs] that jumped the gun,” the judge said.

She suspended the declaration of invalidity for 12 months, giving the department time to determine the status of IDs presently blocked and to deal with the clients of Lawyers for Human Rights and LegalWise within 90 days.

She also ordered the immediate removal of any blocks on minors whose parents’ status as South African citizens or permanent residents has not been revoked.

On the issue of costs, she said the application had been brought about by the department’s prolonged and persistent failure to develop and implement a constitutionally compliant process, as well as its ignoring the jurisprudential value of Ubuntu.

She said:

“This violation of constitutionally enshrined rights by the respondents, the prejudice caused particularly to minor children when there is ample law on the rights of children, their lackadaisical approach to investigate and resolve the underlying issues in any manner other than randomly blocking IDs justifies the granting of a punitive costs order.” 

Ruling welcomed by Children’s Institute

Paula Proudlock, senior researcher at the Children’s Institute, welcomed the ruling and said compliance would be monitored.

She said: “The court says Home Affairs must lift blocks from the IDs of children whose parents’ IDs are under investigation and blocked, and Home Affairs must file a report with the court within 12 weeks confirming that it has lifted the blocks.

How children will benefit

The court also said Home Affairs may not prevent a child’s birth from being registered because their parent’s ID is under investigation. In these circumstances, Home Affairs must register the child’s birth as a citizen or permanent resident and give the child an ID number.

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“We are very pleased by this relief as this is the main reason we entered the case. One of our clients, Ms Zulu, a South African citizen, was prevented from registering her newborn triplets because her ID was under investigation.

“The mother and her three babies suffered great hardship at a time when they were at their most vulnerable. Her ID was eventually cleared and unblocked after a year due to advocacy by a dedicated dietician at the public hospital treating her and the triplets. Her story illustrates that citizens, permanent residents and refugees get caught up in the blocking system because it is done on mere suspicion and before a fair process and proper investigation has been completed,” Proudlock said.