/ 18 January 2024

Court orders home affairs not to ‘block’ children’s IDs

South African Minister Nzuza Officially Opens Paarl Hospital Home Affairs Office
File photo by ER Lombard/Gallo Images via Getty Images

The department of home affairs may not “block” the birth registration or identity documents of children whose parents’ documents are being investigated by officials without following a proper process, according to a ruling by the Pretoria high court in a landmark child rights case this week.

Phindile Mazibuko, who was affected by ID blocking, as well as Lawyers for Human Rights and LegalWise, brought the matter — estimated to affect about 800 000 people — against the minister of home affairs and his director general last September. The Children’s Institute was admitted as an amicus curiae (friend of the court).

Judge Elmarie van der Schyff ruled in a watershed judgment on Tuesday that although 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, blocking an individual’s ID without following a just administrative procedure constitutes “a mischief”.

The judgment declared the practice of “blocking” by placing markers on identity numbers and identity documents to be “unjust, invalid, and inconsistent” with the Constitution.

The court ordered the home affairs department to stop blocking adults and children’s IDs without following a fair procedure as required by the Promotion of Administrative Justice Act.

This means the department must first give people notice in writing that a problem has been found with their ID, allow them reasonable time and opportunity to present their side of the story, conduct a proper investigation and then provide them with written reasons why their ID will be blocked. The department must then obtain a court order before blocking an ID.

The court also ordered the department to immediately remove blocks from all minor children’s IDs, where their parents’ statuses are being investigated but have not been finalised and revoked. The department must also stop barring the registration of children’s birth because their parents’ identities are under investigation.

The court said the department should file a report to it within 12 weeks, confirming that all the blocks on children’s IDs have been lifted, providing relief for children aged 16 to 18 who already have their IDs but have been unable to use them because they are blocked. It will also help children aged 16 to 18 who have birth certificates but have been unable to get their IDs because their parents’ IDs have been blocked.

Another key element of the ruling was that even if a parent’s ID is under investigation, the department must still register the child’s birth as a citizen, permanent resident or refugee, based on the parents’ status on the national population register, and may no longer refuse to register the birth.

The Children’s Institute, represented by the Centre for Child Law, joined the case as a friend of the court, to highlight how the blocking of a parent’s ID harms their child’s rights to birth registration, identity and nationality, and to ensure all affected children would obtain relief from the court.

“The court has affirmed our position that it is unjust to penalise children for matters over which they have no power or influence. It is important to emphasise that the court held that the DHA [department of home affairs] is obliged to recognise the status (citizenship, permanent residence or refugee status) of the children until their parent’s status has finally been determined following an investigation,” said Mbonisi Nyathi, a legal researcher at the institute. 

Senior researcher Paula Proudlock said the Children’s Institute was pleased by the relief granted by the court.

“One of our clients, Ms Zulu*, who is a South African citizen, was prevented from registering the birth of her triplets because her ID was under investigation. She and the three babies suffered great hardship as a result, at a time when they were most vulnerable,” she said.

“Her ID was eventually cleared and unblocked after a year due to the advocacy of a dedicated dietician at the public hospital treating her and the triplets. Her story illustrates that South African citizens, permanent residents and refugees get caught up in the blocking system because it is done on mere suspicion and before a fair process and proper investigation has been completed.”

In Zulu’s case, the department considered her “suspicious” because her birth was registered by someone other than her biological mother because Zulu’s mother had died when she was very young.

The Children’s Institute’s evidence to the court showed that children without birth certificates face a significant risk of being excluded from receiving social grants and attending school, even when legally entitled to this.

Adolescents without IDs face exclusion from writing matric, from applying for higher education and National Student Financial Aid Scheme funding, and applying for social grants.

Children are individuals with their own rights who should not be treated “as mere extensions of their parents”, said Centre for Child Law attorney Liesl Muller, adding that it was important that the court order be swiftly and clearly communicated to all departmental officials.

“Based on the order, we will now be advising mothers with blocked IDs to approach their local DHA offices to register their children’s births and assist their children to apply for IDs. We hope that the DHA officials will be aware of the court order and ready to register the children,” Nyathi said.

LegalWise South Africa Impact Litigation Unit manager Lithalethemba Stwayi 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,” Stwayi said.

“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. Today’s ruling holds immense significance as it directly impacts the fundamental rights and privileges of our citizens.”

 *Not her real name