In a victory for at least 800 000 people in South Africa with blocked ID Documents, the Gauteng High Court, Pretoria has declared this practice by the Department of Home Affairs unjust, irregular, invalid and inconsistent with the Constitution.
Judge Elmarie van der Schyff said in her judgment that the blocking of IDs without notice by Home Affairs, prior investigation and appeal processes was against the Constitution.
This is a reprieve for the hundreds and thousands of people in the country, many who have been without ID for many years.
This conduct by Home Affairs was challenged by an applicant whose ID document was blocked.
Lawyers for Human Rights and the Children’s Institute joined the fray as friends of the court.
LegalWise Impact Litigation Unit, which also joined this matter on behalf of its members who have been grappling with the distressing issue of blocked IDs for years, welcomed the judgment.
“Blocked IDs have profound implications for the approximately 800 000 South Africans whose identity documents were blocked by the Department of Home Affairs. These documents are indispensable for various essential activities, including marriage, banking, healthcare access, employment, registering births of children, and even the exercise of voting rights in the upcoming elections,” Lithalethemba Stwayi of the unit said.
She added that the ruling holds immense significance as it directly impacts the fundamental rights and privileges of our citizens.
In the opening to her judgment, Judge Van der Schyff commented that South Africa faces many migration-related challenges, including the increased prevalence of irregular migration and identity theft.
Non-South African citizens who enter the country unlawfully often employ various means to obtain identity numbers under the pretense that they were either born as South African citizens or awarded permanent resident status.
This abuse of process allows for illegal foreigners to access benefits reserved for South African citizens and permanent residents. The use of fraudulently obtained identity documents creates a dilemma for the Government and the country on different levels.
To address this dilemma, the department resorted to ID blocking, to block any suspiciously processed identity number before or while investigating whether a person registered in the national population register is a South African citizen or permanent resident.
Because the ID blocking occurred before any investigation was concluded and a final decision was reached regarding a person’s status as citizen or permanent resident, it prejudiced bona fide citizens and permanent residents as much as it prevented illegal immigrants who fraudulently obtained identity numbers to reap the benefits of being issued with an identity number and identity document.
The applicant asked the court to review the practice of placing a marker against the identity number of a person registered in the SA national population register without advising the affected party of it, despite all of its prejudicial consequences.
The litigation concerned the legality of the department’s practice of blocking South African identity numbers prior to the correct investigation and procedural steps being followed.
The consequence to a person against whose ID a marker has been placed, is that if the person approaches a bank, a South African Social Security Agency office, or any other institution that requires an ID, they will be denied the service they seek, and be informed that their ID is blocked.
The court was told that the blocking of IDs prevents individuals from engaging with the world in any way that requires that person to use their ID. These individuals cannot obtain passports to travel, and they can't vote, access healthcare or education systems, or open bank accounts.
The Children’s Institute drew the court’s attention to the effect blocked IDs had on children. It said children also feel the brunt when the department blocks the ID documents of their parents, as the parents are unable to register their children’s births or help them get their own IDs.
This leaves children undocumented for years, infringing on their rights to a name or a nationality.
Home Affairs meanwhile told the court that a new process has been implemented since November 2022 in relation to ID blocking. Judge Van der Schyff commented that unfortunately, the department did not feel the need to share the details of this new process with the court.
“This application was necessitated by the DHA’s prolonged and persistent failure to develop and implement a constitutionally compliant process empowering it to place markers against IDs that result in the inevitable and automatic blocking thereof.”
“Even though the applicants did not raise it, I am acutely aware that in blocking IDs in the manner that it did, the DHA ignored the jurisprudential value of ubuntu,” the judge said.
Judge Van der Schyff added that the applicant and other people in similar circumstances were, at the very least, entitled for consideration by the department in the spirit of fairness and ubuntu during this prolonged period of uncertainty.
She said the department’s belated concession that the process they followed until November 2022 did not promote administrative justice is of no consolation to the hundreds of thousands of individuals affected by the practice of blocking IDs. “The order that stands to be granted cannot erase the hardship suffered due to the respondents’ conduct,” she said.
Lawyers for Human Rights meanwhile expressed its hope that this judgment will be the end of this unjust practice. “We hope that this will be the first step in restoring dignity to the thousands of people who have suffered,” it said.