Children feel the brunt when the Department of Home Affairs blocks the ID documents of their parents, as the parents are unable to register their children’s births or to help them get their own IDs.
This leaves children undocumented for years, infringing on their rights to a name or a nationality, the Children’s Institute (CI) at UCT this week argued in the High Court in Pretoria.
The institute, represented by the Centre for Child Law, joined an application against the department as a friend of the court.
Lawyers for Human (LHR) rights turned to court to challenge the conduct of Home Affairs in blocking certain people’s IDs , leaving them in the cold. They are representing more than 100 clients whose IDs are blocked.
The CI highlighted the harsh consequences for children whose parents’ IDs have been “blocked” by the department: undocumented children face a significant risk of being excluded from receiving social grants and attending school, even when entitled to this.
The CI asked the court to protect the best interests of children by making an order to provide systemic relief not only for adults affected, but also the interests of the children affected.
An ID is blocked when the number is flagged because it is tainted by an administrative error, or because of suspected fraud or misrepresentation. Affected people must then submit extensive documents to show citizenship, or that they are entitled to the ID.
They must also provide biometric data and participate in interviews held by an immigration officer, sometimes involving witnesses.
As LHR explained, many cases remain unresolved because some people cannot produce all the required evidence, especially those with unregistered births or parents who were unregistered (mainly due to inadequate civil registration records for black South Africans pre-1994).
Despite the department’s claim of a six to eight week investigation period, most affected people experience excessive delays, often waiting years.
The CI presented case studies to the court, which include those of four mothers who are South African citizens whose IDs have been blocked, resulting in their children’s births going unregistered for years, said Mbonisi Nyathi, a legal researcher at the CI.
“The children have suffered being excluded from social grants in early childhood – when they need it most; along with delays in being admitted to school, being refused places at school, and being excluded from school programmes like access to free uniforms and participating in sport,” he said.
The CI, through its legal services project, has over the past five years been helping parents/caregivers of children without birth certificates get these documents. It has identified certain categories of children and parents/caregivers who are more likely to struggle to get birth certificates and/or ID cards.
These include children whose mothers do not yet have their own IDs, children in the care of unmarried fathers, abandoned or orphaned children in the care of relatives, and children whose mothers’ IDs have been “marked” or “blocked” by the department.
Due to the blocking of their mothers’ IDs, the children cannot get birth certificates and/or ID cards until the block has been removed by home affairs. More than 80% of the at least 500 000 children without birth certificates are South African citizens
Using the General Household Survey and National Income Dynamics Survey data, the CI estimated that in 2017 there were at least half a million children in South Africa without birth certificates. It said this number is likely to have increased significantly this year due to the department offering fewer services in 2020 and 2021 during the Covid-19 period.
The Department of Basic Education’s data, tabled by Home Affairs in its answering affidavit, shows that last year there were 1.1 million learners attending public schools without documents, and at least 73% are South African citizens.
“The Constitution establishes the best interests of the child as a self-standing right, as well as the principle crucial to the interpretation of all other rights. The case against the department shows there has been no consideration for the best interests of the children in the process of blocking the parents’ ID documents. The practice of ID blocking stands to be found unconstitutional on that basis alone,” said Liesl Muller, an attorney at the Centre for Child Law.
She added that this shows that children’s births can remain unregistered for many years due to Home Affairs blocking the IDs of their mothers without following a just administrative procedure.
The evidence from the CI also shows that mothers only become aware of their IDs being blocked when they try to give notice of their children’s birth at the department. There is no communication from the department notifying them that their IDs have been blocked before this.
The department also does not provide written reasons before or after blocking the IDs.
While Home Affairs acknowledges that scores of IDs have been blocked, it said it is in the process of removing some of the blocks.