Court decision declaring 'blocking' of ID numbers unconstitutional lauded

The Children's Institute (CI) has welcomed a Pretoria high court ruling declaring home affairs' decision to block identity numbers without a “fair administrative process” unconstitutional and invalid.

The department was taken to court by Eswatini national Phindile Mazibuko, who was later joined by Lawyers for Human Rights (LHR) and Legal Wise. The CI, represented by the Centre for Child Law (CCL), joined the matter as a friend of the court.

Mazibuko, who has permanent residency in South Africa, went to court after a marker was placed on her ID, effectively blocking it. Home affairs said it had been obtained unlawfully.

Reacting to the judgment, CI senior researcher Paula Proudlock said: “We are pleased by this relief as this is the main reason we entered the case.

 “One of our clients, Ms Zulu (a pseudonym) 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.

“Her ID was eventually cleared and unblocked after a year due to the advocacy of a dedicated dietitian 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.”

The department marked and blocked suspicious ID numbers through its national identification system, and once flagged, they cannot be used in any transaction that requires identification, effectively making it impossible for the holders “to access the rights, privileges, and benefits of citizens”.

The block happens automatically once the ID has been marked, pending an investigation.

Mazibuko's ordeal started in 2012 when she was told money had been taken fraudulently from her bank account in a case of identity theft.

She approached home affairs to resolve the matter.

According to the court judgment, this sparked a lengthy investigation that ended in 2018 when she was told an “unfamiliar identity number” linked to her name had been obtained in 1997 by an unknown person and it appeared that “her permanent residency and South African identity document were obtained unlawfully”.

“She was informed she would be contacted in February or March 2019, and in all likelihood, her permanent residency permit would be withdrawn, and her identity document revoked, resulting in her being deported and criminally charged.

“Despite numerous requests, [Mazibuko] was not furnished with reasons for the allegations that the documents were unlawfully obtained.”

After a two-year battle to try to get the matter resolved, Mazibuko eventually approached the court for an interdict stopping home affairs from deporting her, revoking her permanent resident status or confiscating her ID pending a final decision.

She also asked the court to review and set aside the department's decision to mark and block her ID and “substitute such decision with a decision confirming her status as a lawful South African permanent resident, alternatively remitting the decision to the respondents for reconsideration within 30 days”.

Home affairs argued Mazibuko had failed to exhaust all internal remedies before approaching the court. It also argued the court had no power to “lift a marker against an ID number where a person has more than one number” and that the “court’s jurisdiction is ousted in the face of a flagrant contravention of the Bill of Rights”.

“The respondents remain steadfast in their view that [Mazibuko] provided both sets of fingerprints for the respective identity document applications, as she is ‘physically the only person who could have supplied the fingerprints.’ 

“They aver it is not for the court to consider whether [Mazibuko] has met the requirements to become a South African citizen and not for this court to grant permanent resident status,” the judgment read.

The department admitted blocking ID numbers without a “fair and just administrative process is inconsistent with the constitution”.

It unblocked about 1.8-million IDs affected by the process but still maintained “the benefit of placing markers against specific identified IDs is more valuable than dispensing with the practice”.

“They submit that with a procedurally fair and just process being introduced into the system, the violation of individuals’ constitutionally protected rights will be justified and acceptable in a free and democratic society based on the principles embedded in the constitution.

“The respondents essentially submit that a case is to be made for the limitation of any of the affected persons’ fundamental rights as provided for in section 36 of the constitution.”

LHR argued on behalf of clients in a similar situation to Mazibuko and whose children are indirectly affected by this. It equated the practice to “stripping a person of their citizenship” and said there was no legal basis or authority for the department to do this.

Legal Wise argued the practice didn't differentiate between those suspected of wrongdoing and those who had committed an illegal act.

The court ruled in Mazibuko's favour and found the practice of blocking suspicious ID numbers without a fair process was “inconsistent with the constitution and therefore invalid”.

The court, however, suspended the invalidity for 12 months to allow home affairs to determine whether any IDs blocked before November 2022 and still blocked “correctly reflect the particulars of the person to whom the identity number was assigned” or get court orders to keep those numbers blocked pending the finalisation of an investigation.

Home affairs was also ordered to lift the blocks placed on any minor children whose parents' status as citizens or permanent residents has not been finally revoked or withdrawn.

“[Home affairs must] file an affidavit within 12 weeks of this order being granted ... confirming that effect was given to [this],” the court said.

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