By Lehlohonolo Lehana.
The Pretoria High Court has declared the Department of Home Affairs’ practice in South Africa of blocking identification documents (IDs) without prior notice or investigation, as unconstitutional.
In passing down the judgement, High Court Judge Elmarie van der Schyff said the Home Affairs director-general has a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID, however, blocking someone’s ID without following any just administrative procedure “constitutes a mischief”.
Van der Schyff, in her ruling this week, said the department had submitted that the blocking of IDs was meant to prevent foreign nationals from abusing systems to access benefits reserved for South African citizens and permanent residents. The department placed a “marker” next to affected IDs, which automatically led to the ID numbers being blocked without advising the affected parties, who suffered prejudicial consequences.
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.
Van der Schyff, said the existing legal framework did not provide for placing a marker against an ID that would result in the concerned individual’s ID being blocked during the investigation stage.
This means “suspicion” does not justify blocking an ID unless the action is authorised by a court order.
“Such conduct stands to be reviewed. I am of the view that the blocking of IDs is justified after a fair administrative procedure is followed and a final decision is taken to revoke, cancel or withdraw the ID under applicable legislation.
She suspended the declaration of invalidity for 12 months, giving the department time to determine the status of IDs presently blocked and to deal with the clients of Lawyers for Human Rights and LegalWise within 90 days.
Human Rights lawyer Thandie Chauke hailed the ruling, denouncing the Department’s process of blocking IDs based on unsubstantiated suspicions.
Chauke criticized the system for treating individuals as guilty without conducting due process, highlighting the absence of proper communication or investigation.
The ruling also necessitates the immediate removal of any blocks on minors whose parents’ status as South African citizens or permanent residents has not been revoked.