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 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. The civil society organisation argued that the blocking of IDs effectively prevents those affected from engaging with the world, such as obtaining passports and travel, accessing education and healthcare, and opening or accessing 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.
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 but over 700,000 remained blocked.
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.
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. The 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.
Lawsuits for Human Rights welcomed the ruling, pointing out 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. They expressed their happiness 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.
