In a recent landmark judgment from the Gauteng High Court, the court declared that the Department of Home Affairs’ (DHA) practice of blocking South African IDs is an unjust and irregular administrative action that is inconsistent with the Constitution.
This followed the DHA’s extensive campaign to block IDs it considered suspicious and fraudulent.
Background
Home Affairs Minister Aaron Motsoaledi and Director-General Livhuwani Makhode faced scrutiny from affected permanent residents and civil society organisations, including Lawyers for Human Rights, Legal Wise South Africa, and the Children’s Institute.
The case was brought forward by eSwatini citizen, Phindile Mazibuko, who was residing in South Africa since 1998. Mazibuko had her ID blocked, putting her permanent residency at risk.
Lawyers for Human Rights and Legal Wise South Africa sought to join the case for public interest and to unblock their clients’ IDs. The Children’s Institute was admitted as a friend of the court in this matter.
The applicants argued that the practice of blocking IDs was unconstitutional because it left the affected parties in a state of “statelessness”.
Unpacking the judgment
What were the reasons for ruling ID blocking unconstitutional? We unpack the judgment.
In passing down the judgment, Gauteng High Court Judge Elmarie van der Schyff said that the Home Affairs Director General had a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID. Judge Van der Schyff said that doing so without following just administrative procedure was “mischief”.
Judge Van der Schyff noted that a mere suspicion that an ID document was fraudulent did not justify placing a marker on it and blocking an ID unless it is authorised through a court order.
In an answering affidavit, the DHA acknowledged that the IDs were blocked without a fair and just administrative process, admitting that it was inconsistent with the Constitution.
The department informed the court that it had developed what it called a procedurally fair and transparent system that has since been implemented. However, the system still entails the placing of markers or blocking of IDs.
The department has been directed to assess whether unblocking currently blocked ID documents poses a security risk and to determine the status of Lawyers for Human Rights and Legal Wise clients within 90 days. The implementation of this directive is temporarily suspended for 12 months, allowing the Department of Home Affairs time to comply with the order.
The court declared that the department’s placement of markers against identity numbers or documents, leading to the blocking of identity numbers, lacks a fair administrative process and lacks legal empowerment. This action is deemed unjust and irregular administrative conduct, violating the Constitution and is thus declared invalid.
The court highlighted that in blocking IDs in the manner it did, the department “ignored the jurisprudential value of ubuntu”. The court ordered the department to put in place a just and fair process that is in line with the Constitution and the Promotion of Administrative Justice Act (PAJA).
The court added that “while the passive violation of human rights by a State that fails to take steps to promote and advance human rights is unacceptable in a constitutional dispensation, the active violation of human rights by a State that infringes constitutionally entrenched human rights violates public trust in the institution of the State and undermines the Constitution”.
The DHA claimed that ID blocking is an “administrative tool” used to maintain the accuracy and integrity of the National Population Register, but could point to no fair and legal administrative process for the use of this “tool” .
The “block” occurs when a marker is placed against an ID number, either indicating that it is tainted by an administrative or clerical error, or by suspected fraud or misrepresentation.
The response
The judgment was welcomed by members of the public affected by ID blocking as well as lawyers.
Lawyers for Human Rights (LHR) has released a statement, welcoming the judgment.
According to LHR, it will bring relief to millions of people in South Africa.
“ID blocking can result in statelessness, as it effectively strips affected individuals of their citizenship and dignity,” said LHR.
LHR contended that the department’s ID blocking practice reflects a “contempt for people”, and undermines the sanctity of the Constitution.
Thandeka Chauke, head of the Statelessness Unit at LHR, said, “We are happy that we will see an end to this unjust practice and we hope that this judgement will be the first steps in restoring dignity to the thousands of people who have suffered.”
