Maverick Citizen

HELL AFFAIRS

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

Relief for over 700,000 citizens as high court declares ID blocking by Home Affairs unconstitutional
The Gauteng High Court handed down a landmark judgement on Tuesday, 16 January, declaring the Department of Home Affairs’ practice of blocking IDs unjust and inconsistent with the South African constitution. (Photo: Deaan Viviers / Gallo Images / Foto24)

The Department of Home Affairs is no longer allowed to block South African IDs arbitrarily, cutting citizens and residents off from essential services, following a landmark judgment from the Gauteng high court. Lawyers for Human Rights has welcomed the ruling.

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

Gallery

Comments - Please in order to comment.

  • Even me I’m struggling about this thing since from 2017 until today

  • what must I do i can’t even take my kids birth certificates cant work please send me contacts can’t travel can’t open an account please help

  • Geoff Coles says:

    First steps should be to lock up the Minister and DG for a couple of months….maybe in the Kalahari!

  • I had always wondered how does this department carry out its work, I don’t hate a blocked Id but I have applied for my foreign wife’s permanent residence since 1998 but every time I go to the DHA I am different stories, like the law was amended, it used to be waiting period of 5 years and it’s now 10 years and the last time I was there I was told that the official will call me but nothing has ever happened, this after I went through all procedures and protocols and she issued with green barcoded ID but she cannot apply for the passport, I think this compares the same as blocking one’s ID,word of advice please

    • Andrew Crawford says:

      My late wife came to South Africa in 1983 while still at school. They never gave her a RSA passport despite being married to me for 20 years until her death in 2017. DHA disregard our laws and are autocratic.

  • Ancelm Peyisayi says:

    The trend is that motsoaledi just takes peoples lives into his pocket.he is a self judge who thinks he personal should re write the costituition a medical dr for that who did not leave hospitals in order.he reacts to foreign hetrage in deciding.

  • Bruce Gatland says:

    Fire and criminally charge that obnoxious Motsualedi.
    He has on a whim and a communist fancy, ruined people’s live.

  • Jan Vos says:

    We have a plan. The plan is no plan. That is the plan.

  • braveheartsimba8 says:

    Myself as a proud citizen. It would be enlightening to get a rigorous revelation of the money funders of these so called NGO’s or NPO’s because they surely are saving a lot of their money from having unregistered foreigner cleaners and gardeners at theirs farms and suburbs. That is why they would go to court for them.

  • Citizen X says:

    A pity they did not block the Guptas and their band of rogues IDs, passports or visas.

  • Tshidi Mtimkulu says:

    My father was south African citizen we found out about his ID being blocked by home affair when he passed on in 2016. We struggling to get death certificate till now. When we go to home affairs they told us there’s is nothing can be done about it. We couldn’t even get anything from his money that he worked for many years.
    My father still registered alive and he is a deceased. I don’t what to do with this situation.

  • A question ? Why do permanent residents still get refused the new ID card but get issued with the old style ID books.

  • Johan Buys says:

    Sorry, but if you cannot substantiate that you are in a non-corrupt manner actually entitled to an SA ID, you SHOULD be blocked. We’re perpetuating a system whereby improperly or unproven status is cemented as being valid.

    • paul baillie says:

      Clearly you have never experienced the sheer lack of assistance that home affairs offers law abiding citizerns. Yes bad guys need to be blocked, but dont make the good guys pay for the bad guys miss deeds.

    • Tshepiso Ramushu says:

      The problem is that people were not given the chance to even substantiate. Did you not read past the headline?

    • Penny Philip says:

      Yes, but the method of checking if the ID is fraud has to be done properly & not left up to some random individual at DHA based on whether your vaccination mark on your arm is the ‘right’ size.

    • Vas K says:

      If we lived in a functioning country I would agree with you, Johan. But in this case we deal with a Department of clueless and corrupt morons. Also I feel that the principle of being innocent until proven guilty must apply. Suspicion by a moron is not good enough.

  • I thank you alot for helping poor citizens whose IDs are taken by those selfish officials who think they own our forefathers land

  • Brian Cotter says:

    “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.”
    So where is the contempt of the Court statement for the Minister should he not apply the ruling by a certain time.

    • Frank Lee says:

      Interestingly if you read on, the answer to your question is provided – “The declaration has been suspended for 12 months, giving the DHA time to comply with the order.”

  • Ray Jones says:

    As a Resident & Citizen for over 43 years, why is it that I have to use the old ID book.
    I’ve been to home affairs, a number of times, but they say that their system doesn’t allow it. Why not,??

    • Malcolm Royal says:

      I am a Resident of 73 years standing. I am a Naturalised South African Citizen. I have a South African Passport.
      Home Affairs told me that ID Cards are only isssued to Persons Born in South Africa. Should I need to replace my ID Book I can. I accept their guidance. A book is as good as a card, just a bit bulkier. It is not that I have to carry the ID Book at all times. I haven’t seen Policemen stopping people and asking for identification for a long time.
      I cannot get tweaky about an ID Card.

  • Luke Koning says:

    I have tried since 18-09-2009 to get a copy of my permanent residence. My ID was stolen. I cannot re – new my ID without that paper. Recently I’ve was attacked and robbed of both phones and my wallet. Now I cannot get a new driver’s license either. I cannot open another bank account. It’s like a catch 22.

  • Wendy Dewberry says:

    It seems illogical that government is blocking this form of census – the government needs everyone to have an ID in order to make administration of issues of population management easier. Not that I particularly like having to be in this system, but I see the bigger picture. This includes keeping track of who comes in and out. To block people from having one seems counter- intuitive. I see that some countries have used block chain technology which is, at this point, relatively tamper proof.
    Perhaps that would be the solution our government needs? A tamper proof registry system that cannot be manipulated out of its raison d’etre, or mission.

  • Wilna Lubbe says:

    Some suggestion to the reader whose deceased father was blocked : contact Lawywers for Human Rights to be part of its list of clients .

  • Christopher Campbell says:

    Do Home Affairs actually process anything? How many more have been recruited to clear the backlog, yet it continues to grow.

  • Robert Pegg says:

    I have been a Permanant Resident in SA since 1975. My ID book was damaged in a flood, so I went to Home Affairs and applied for an ID card. I was told I cannot be issued one unless I am a SA citizen. I’ve still got my damaged ID book and use my Drivers License to prove my ID.
    My British passport was wrongly stamped by Customs when I returned from a business trip a number of years ago. Now whenever I return to SA I get stopped by Customs as it shows I have overstayed. I have even replaced my British passport, but it still shows I’m a visitor on the Customs system. I have to produce my damaged ID book and my Permanant Resident permit and hold up the que while they make copies, even when I offer them copies I carry. I asked why it can’t be remedied on their system and get no response.
    Talk about the “blind leading the blind.” The mind boggles.

    • Karen G says:

      I am a South African citizen by way of naturalization, I travel on a South African passport, but I was not born in South Africa. I had my handbag stolen a few years ago so went to DHA to replace my ID book. I was told I needed to apply for the new ID card. I stood in a queue for the new ID card, only to be told that I do not qualify for the ID card because I was not born in SA. So, I still ended up with the old green book. Why the discriminatory practice?

    • Graeme J says:

      I know an American citizen with permanent residency. He has exactly the same problem as you.

      More than once, immigration officials at ORT have offered to sort the problem out if he pays them a cash amount. The last time it was R10,000.

      (PS: Customs didn’t stamp your passport, Immigration did).

  • Kevin Purvis says:

    The issue of each & every RSA ID Document has to be governed by the relevant legislation and controlled by qualified, experienced, honest DHA line management. Should there be evidence or grounds for suspicion of a forged ID Book, false identity, illegal entry, etc. a strict resolution procedure by an independent inspectorate should take place within a reasonable, specified period. It is the duty of the State to protect it’s bona fide citizens from all & any crimes committed by and State services accessed by unidentifiable, undocumented, un finger-printed locals & foreigners.

  • Middle aged Mike says:

    The fact that this is the result of court action years in the making should tell you all you need to know about the level of care the glorious liberation movement has for the people of Msanzi. They’ve used vast sums of our money to fight against them being made to do one of the basic tasks we pay them handsomely to perform. We really are the dumbest group of voters in the world and I’m increasingly pessimistic about our chances of ever waking up and kicking these blood sucking leaches into touch.

  • Iam Fedup says:

    Are we more and more starting to resemble a dreadful dictatorship? Quite frankly, I believe the ANC is capable of hijacking the upcoming election in a coup d’ etat if they lose.

  • Leonora Watson says:

    What about a damages claim against the Dept? These people suffered monetary loss due to the unconstitutional actions of the Dept. I would sue them for damages big time.

  • Ralph Wortley says:

    Home affairs is as corrupt as the rest of the ANC government. Ten years ago my domestic asked me for R8000 for a bribe to get her daughter, born in Botswana, given an ID. I said I could not afford professionally to get involved in bribery. She raised the money elsewhere, paid him, no ID; he then said he had to bribe the next level above him and wanted more. So there is a double corruption: personal and state. This is well known to foreign citizens. A friend of mine, an EU national living here, bore a child and wanted to register it. The consulate of that country asked for papers from the hospital confirming that she had had a baby at that hospital. Thus nobody trusts SA any more

  • It is impossible to get through to this department. They pick up the phone and slam it down. Their OTP are not working. This is ridiculous.

  • Bob Dubery says:

    Parliament should make policy and civil servants should implement it. This sounds trite, but we can’t have civil servants making decisions about who to serve, or Ministers seeking to implement whatever their agenda is without the inconvenience of a reading, a debate, a vote in Parliament.

  • Dianne Krog says:

    We know someone that has been in the country since he was 7 years old – his parents came here from Mozambique. He has the old green ID book and is unable to get a new ID card – why ??? Could anyone explain to me please ?

    • Bob Dubery says:

      Born South Africans get the Card ID first. People like me who are Citizens but not born in SA are deprioritised. I suspect this situation will linger for a long time because there are always new born South Africans getting ahead of me in the queue.

      But my situation exposes what’s really going on here. I have have no trouble renewing my ID (book) or passport. I’m white. It is black folks from elsewhere in Africa that are having problems. The Xenophobic rhetoric from many politicians is taking root in many South African hearts.

  • The DHA is doing thier job as employed but cannot go alone. the government take long to response to the community crisis by not bringing in the regulator’s regulators.it is through the community reports that the government will become aware of every department’s weak points. NM Webber

  • Penny Philip says:

    And if DHA had taken legal advice in the beginning & done this properly from the start, all the legal fees incurred wouldn’t have been wasted . I cannot begin to imagine the inconvenience to foreigners who are legally in SA.

  • cunninghamcvb says:

    DHA refuses to issue new, updated ID documents to anybody born outside the country. There are thousands of us born in Rhodesia or Swaziland or other, who became full citizens of RSA way back, and have the green ID books but the DHA says “you cannot qualify for the new ID until every person born in RSA first gets theirs” – well, that might have been understandable when the new cards were introduced, but its ridiculous now, because people being born into RSA will always be in the queue ahead of us, because they’re always being born. I approached the DA to take this up, as there are problems with depending on the old green books. I am told there are three centres being kept open to reissue green books if they get lost – how silly is that, rather than just giving us the new cards?
    I took it up with the DA but they came back and said they’re not that interested, and don’t have the power. Thanks DA, you know how that makes us voters feel?

  • Lisbeth Scalabrini says:

    Office for Complications of Simple Businesses.
    There is no respect whatsoever for the single citizen😖……or for the citizens in general.

  • Dhasagan Pillay says:

    I do hope the judgement included an order for a public apology.

  • vuyelwamsuthu says:

    This is GREAT, now they must follow with the Passports as well. When you go and renew you find out ther is already one was renw ewe d and issued. Not to uou

  • Honesty Jongile says:

    This is divine intervention coming under the guise of LHR. God has sent the Lawyers for Human Rights and the DA to stop the widespread suffering by people who were illegally described as foreigners in their own country. Without an ID, life and future were bleak, with collateral damage and suffering to so many proudly South African citizens. This minister is merciless to to his own citizens who are supposed to be protected by him! What a mess it was!! He hates foreigners so much and to the extent of inconveniencing his own kith and keen.

  • Martin Smith says:

    No system operated by Home Affairs works either efficiently or fairly. What even are the chances of Home Affairs being capable of complying with this ruling? I’d say zero.

  • We appreciate your work thanks

  • Can’t even do anything my kids havs no birth certificate since my id has been blocked.

  • Vicki Leitner says:

    What about South Africans who do not have aceess to SASSA grants because their births were never registered. Without birth certificates no ID will be issued. Should these hundred or thousands of South Africans be left to starve?? Docs required to register birth include maternity hospital or Clinic info, birth certificate/death certicate of parents, s chool records or testimony of older family member, etc. This may work in a society where these records are available but not in South African society. I have tried for years help someone get these documents – an impossible task given his impoverishment, lack of eduaction, social isolation and the complete lack of assistance and interest from Home Affairs and schools and clinics. Obviously with all the falsification of docs one respect the legal process. But when the person in question is completely disenfranchised and obviously from the Cape Coloured community is this not unethical to deny his right to be recognised as a person and citizen. Should he just be left to die on the streets. And one wonders how many homeless people are in a similar situation.

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