This week’s judgment, which declared the practice by the Department of Home Affairs to block people's ID without good reason invalid, is not only a reprieve for more than 800 000 affected people, but it is also a victory for children.
In terms of the Gauteng High Court, Pretoria order, the department must immediately remove blocks from all minor children's IDs, where their parents’ statuses are being investigated but have not been finalised and revoked.
In future, a child’s ID may only be blocked when a court order has been obtained.
The Children’s Institute at the University of Cape Town and the Centre for Child Law were part of the application and through their input, they managed to secure vital victories for children’s rights.
The case was brought to court by Phindile Mazibuko, who was then joined by Lawyers for Human Rights and various other organisations.
The Children’s Institute, represented by Centre for Child Law, joined the case as a friend of the court to highlight how the blocking of a parent’s ID negatively affects their child’s right to birth registration, identity and nationality, and to ensure that all affected children would also obtain relief from the court.
The court judgment, handed down this week, orders Home Affairs to stop blocking people’s IDs (adults and children) without following a fair procedure as required by the Promotion of Administrative Justice Act.
This means Home Affairs must first give people notice, in writing, that a problem has been found with their ID and allow them reasonable time and opportunity to present their side of the story to the department.
Home affairs must also conduct a proper investigation and then provide the affected person with written reasons as to why his/her ID is going to be blocked. Home Affairs must then obtain a court order before it may block the person’s ID.
The department must also stop refusing to allow parents to register their child’s birth because a parent’s ID has been marked and is under investigation.
“The court has affirmed our position that it is unjust to penalise children for matters over which they have no power or influence,” Mbonisi Nyathi, a legal researcher at the Children’s Institute said.
She added that it is important to emphasise that the court held that Home Affairs is obliged to recognise the status (citizenship, permanent residence or refugee status) of the children until their parents’ status has finally been determined following an investigation.
Within 12 weeks from now, Home Affairs must file a report with the court confirming that all the blocks on children’s IDs have indeed been lifted. This part of the order will provide relief for children aged 16 to 18 who already have their IDs but have been unable to use them because they are blocked.
It will also help children aged 16 to 18 who have birth certificates but have been unable to get their IDs because they have a parent whose ID has been blocked.
Another aspect of the court order is that if a parent's ID is under investigation, Home Affairs must register the child's birth as a citizen, permanent resident or refugee based on the parent’s current status on the National Population Register and may no longer refuse to register the birth.
“We are very pleased by this relief as this is the main reason we entered the case,” Paula Proudlock, Senior Researcher at the Children’s Institute, said.
One of its clients, who is a South African citizen, was prevented from registering the birth of her triplets because her ID was under investigation. She and the three babies suffered great hardship as a result, at a time when they were most vulnerable.
Her ID was eventually cleared and unblocked after a year due to the advocacy of a dedicated dietician at the public hospital treating her and the triplets.
“Her story illustrates that South African 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.
In her case, she was considered “suspicious” by the department because her birth was registered by someone other than her biological mother due to her mother having died when she was very young.
When children cannot obtain a birth certificate or identity document, it infringes on their rights to a name, nationality and identity. The Children’s Institute evidence to the court showed that children without birth certificates face a significant risk of being excluded from receiving social grants and attending school, even when legally entitled to this.
Adolescents without IDs face exclusion from writing matric, applying for higher education and National Student Financial Aid Scheme funding or applying for social grants.
“Children are individuals with their own rights and should never be treated as mere extensions of their parents,” Liesl Muller, senior attorney at the Centre for Child Law. said.
Muller emphasised the importance of the court order being swiftly and clearly communicated to all Home Affairs officials across the country.
“Based on the order, we will now be advising mothers with blocked IDs to approach their local Home Affairs offices to register their children’s births and assist their children to apply for IDs. We hope that Home Affairs officials will be aware of the court order and ready to register the children,” Nyathi added.