Relief for over 700,000 citizens as high court declares ID blocking by Home Affairs unconstitutional

In a landmark judgment that has been years in the making, the Gauteng high court in Pretoria has declared that the Department of Home Affairs’ (DHA) practice of blocking South African IDs is an unjust and irregular administrative action that is inconsistent with the South African Constitution.

This comes after Minister Aaron Motsoaledi and Directer-General Livhuwani Makhode were taken to task by affected permanent resident and Civil Society organisations Lawyers For Human Rights, Legal Wise 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 but had her ID blocked by Home Affairs and was under threat of having her permanent residency revoked. Lawyers for Human Rights (LHR) and Legal Wise South Africa applied to be joined as an applicant in the matter as a matter of public interest and to have their client's IDs unblocked, while the Children’s Institute was admitted as a friend of the court.

The applicants argued that the practice of blocking IDs was unconstitutional because it left the affected parties in a state of statelessness. Perhaps perfectly summed up in LHR’s founding affidavit, the organisation argued that the blocking of IDs effectively prevents those affected from engaging with the world.

The civil society organisation argued, “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 consequences of the practice extend far beyond the affected adults, hindering the quality of life of children whose parents had their IDs blocked.

Read more in Daily Maverick: Department of Home Affairs dragged to court over exclusionary legacy of blocked ID documents

DHA ID blocking campaign

The issue dates back to May 2012 when DHA 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 over 1 million by 2020.

At the time when the application was heard, DHA had unblocked 1.8 million IDs. However, over 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 ID blocking had become increasingly arbitrary, with criteria that seemed subjective and discriminatory.

DHA’s reasons for blocking identity documents 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 decent.

Another point of contention was that the DHA did not follow fair administrative processes before blocking IDs. Many of the IDs had markers placed against them which 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 by the DHA. 

Blocking IDs declared unconstitutional

In passing down the judgement, High Court Judge Elmarie van der Schyff said that the Director General had a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID. However, Judge van der Schyff added that doing so without following just administrative procedure was mischief.

Judge Van der Schyff said that a mere suspicion that an ID document was fraudulent did not justify placing a marker on it and blocking an ID unless it is authorised through a court order, adding that the DHA jumped the gun.

In an answering affidavit, the DHA conceded that the IDs 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 that has since been implemented. However, the system still entails the placing of markers or blocking of IDs.

Read more about Home Affairs: Hell Affairs

DHA has been ordered to determine whether unblocking the ID documents currently blocked will constitute a security risk and determine the status of Lawyers for Human Rights and Legal Wise clients within 90 days. The declaration has been suspended for 12 months, giving the DHA time to comply with the order.

'A first step' - says Lawyers for Human Rights

Touching on the Constitutional Court's emphases 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, LHR's Legal Consultant for Statelessness, Palesa Maloisane, said: "LHR is happy that the court has agreed to order the DHA to ensure a just and fair process that is in line with the Constitution and the Promotion of Administrative Justice Act, particularly because ID blocking can result in statelessness as it effectively strips affected individuals of their citizenship and dignity."

Maloisane added that the organisation hoped that the judgment would be seriously considered by the department and inform the swift resolution to LHR's client's cases, 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. DM