This will bring relief to hundreds of thousands of people, and there are many more who may be unaware the government has marked their IDs as ‘blocked’. From Moneyweb.
The Pretoria High Court this week ruled as unconstitutional the “blocking” of IDs of South Africans by the Department of Home Affairs (DHA) without a fair administrative process.
The DHS’s practice of placing a marker next to an ID deemed suspicious is to prevent illegal foreigners gaining access to benefits reserved for South African citizens and permanent residents, such as health care and social security.
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Individuals whose IDs have been blocked are unable to obtain passports for travel, cannot vote, access healthcare or schooling, or open bank accounts.
The court heard evidence from the DHA that it had recently unblocked 1.8 million IDs, with more than 700 000 still blocked at the time of the court case.
The case was brought by Phindile Mazibuko, Lawyers for Human Rights (LHR) and LegalWise. The Children’s Institute presented evidence as a friend of the court on the consequences to the children of those with blocked IDs.
The respondents were the minister of Home Affairs and the director-general of the DHA.
Identity theft victim gets blocked
One of the applicants, though born in Swaziland, married a South African in 1997 and was granted permanent residence in 1998.
In 2012 she was notified by her bank that someone had fraudulently deducted funds from her account. Someone appeared to have accessed her personal details, including her full name, fingerprints, and a photograph, and was using this information to impersonate her. She was advised to approach the DHA for assistance in investigating a possible case of identity theft.
The DHA found two ID numbers linked to her name, and she was advised to make out an affidavit at the police station explaining the situation. She did not hear back from the DHA for several years on the status of the investigation into how a second ID number became attached to her name.
In 2018 she was told by the DHA that the second ID number had been obtained in 1997 by an unknown individual at the Mbunzini Immigration Office in Mpumalanga.
She was then told it appeared her SA identity document and permanent residence had been obtained unlawfully and would likely be revoked.
She lived in constant fear that she would not be able to apply for SA citizenship and would be deported and separated from her husband and two children.
In its defence, Home Affairs said the applicant failed to exhaust all internal remedies before approaching the court.
It also argued that the court “has no power to lift a marker against an identity number where a person has more than one identity number” and maintained that the applicant alone could have provided the same set of fingerprints for the two ID numbers reflected on the DHA database.
LHR intervened in the case, representing more than 100 people whose IDs are currently blocked.
Distressing discoveries
LHR has assisted more than 500 people with blocked IDs in the past five years, most of them marginalised black South Africans.
“None were aware of their blocked IDs until they attempted to access another service, [such as] applying for passports or new IDs, renewing driver’s licences, opening bank accounts, or applying for social grants,” says LHR in a response to the judgment.
“None received prior notice of the DHA’s intention to block their IDs or investigate their status, nor written reasons for the decision to block,” it adds.
“Furthermore, none were given an opportunity to make representations before their ID was blocked, or before the finalisation of the investigation. ID blocking can result in statelessness as it effectively strips affected individuals of their citizenship and dignity.”
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Home Affairs in 2018 had fallen foul of the SA Human Rights Commission (SAHRC) in a previous case of a complainant whose ID had been blocked. The SAHRC recommended that the DHA review and align its operational systems relating to the issue of IDs to ensure they were consistent with the law, and to stop blocking or marking IDs without consultation with the ID holders.
Ghosts in the system
LHR argued that Home Affairs had consistently ignored instructions and recommendation from parliament and the SAHRC.
Those with blocked IDs are prevented from engaging with the world. “They become ghosts in the system,” argued LHR. “They cannot obtain passports and travel, they cannot access education and healthcare, they cannot open or operate bank accounts. In many cases, the inequity stretches to the children of LHR’s clients, who, by implication, have the same consequences thrust upon them.
“As a result, they live lives of indignity and inequality, dependent on others to function in society and vulnerable to abuse as a result.”
LegalWise, representing several clients with blocked IDs, argued that it is unclear what statute or regulation empowered the DHA to place a marker against an ID resulting in it being blocked.
The DHA said the Home Affairs National Identification System (Hanis) is the authentication system that verifies fingerprints of SA citizens against the national population register.
The DHA did not dispute that the blocking of an ID should be communicated to those likely to be affected.
The department said it is busy implementing a procedurally fair and transparent process that will still allow for ID blocking, but would be timeously communicated to those affected, giving them an opportunity to make representations before a decision is made.
Judgment
The ruling by Judge Elmarie van der Schyff declared invalid the placing of markers by the DHA against ID numbers without following a fair administrative process.
“A mere suspicion that the ID does not correctly reflect the particulars of the person to whom it was issued because the ID might have been fraudulently obtained does not justify the blocking of the ID in the current legislative framework,” reads the judgment.
The declaration of invalidity was suspended for 12 months, allowing time for the DHA to fix its database to ensure blocked IDs are correct.
Alternatively, the DHA must obtain court orders to maintain a block on an ID where any investigation has not been finalised.
This does not impede the right of individuals to approach the court for an order uplifting any block placed on their IDs.
“We are happy that we will see an end to this unjust practice and we hope that this judgment will be the first step in restoring dignity to the thousands of people who have suffered,” said Thandeka Chauke, head of the Statelessness Unit at LHR.