How living without a birth certificate has crippled me, says grade 12 pupil facing ID blockade

Owam Ntabeni* (not her real name), 17, loves sport. Despite her gift as an athlete and her active participation in school sports, when her school plays matches, the teenage girl is often left behind and can’t participate in tournaments.

This is because she doesn’t have a birth certificate, which is required for school trips. 

Her 14-year-old sister, who couldn’t study for the first six months of last year due to not having a birth certificate, has similar problems. 

Not having a birth certificate means Ntabeni may be running out of time to apply for an identity document (ID), which she needs to write her matric exams this year.

“I don’t attend trips at school and sports because I don’t have a birth certificate. I am worried that I cannot do my ID and that I will not be able to write my matric if I don’t get my birth certificate.” 

The Ntabeni sisters are two of millions of children across the country who don’t have birth certificates due to the systematic blocking of IDs by the department of home affairs. About 700,000 IDs in SA, some suspected to be used in ID fraud, remain blocked by home affairs. In their case their mother’s ID was blocked for being a duplicate, allegedly due to a home affairs error. 

SA citizen Iviwe*, 24, who does not yet have his ID, dropped out of school in 2020 before finishing matric due to his family’s poverty. He was unable to access social grants because his mother’s ID was a duplicate. She could not access social grants for her four children.

But this week the trio had good news after the Gauteng high court in Pretoria declared the blocking of IDs to be unconstitutional. 

In a landmark judgment on Tuesday, judge Elmarie van der Schyff said while home affairs director-general Livhuwani Makhode had a responsibility to protect the integrity of the national population register, “placing a marker” on such a document without following just administrative procedure “constituted a mischief”. 

The case was brought by Phindile Mazibuko, who had her ID blocked after someone impersonated her, as well as Lawyers for Human Rights and LegalWise South Africa, with the Children’s Institute admitted as an amicus curiae (friend of the court) on the consequences for the children of those with blocked IDs. 

The court held that the department of home affairs is obliged to recognise the status, such as citizenship, permanent residence or refugee status of the children until their parent’s status has finally been determined following an investigation.

—  Mbonisi Nyathi, legal researcher at the Children’s Institute

Though she was born in Swaziland, Mazibuko married a South African in 1997 and was granted permanent residence in 1998. But after an identity theft, she was told her permanent residence was obtained unlawfully and would likely be revoked. 

But Van der Schyff said placing a marker without following just procedures was equivalent to “seizing” an ID before any proper investigation was done. A mere suspicion did not justify the placing of a marker unless this had been authorised through a court order. 

Home affairs was given 12 months to get its house in order by fixing its database and to ensure that blocked IDs are correct, but Van der Schyff said this does not impede the right of individuals to approach the court for an order to uplift any block placed on their IDs. 

The Children’s Institute and the Centre for Child Law said the judgment is a vital victory for children’s rights. 

Mbonisi Nyathi, a legal researcher at the Children’s Institute said: “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 department of home affairs is obliged to recognise the status, such as citizenship, permanent residence or refugee status of the children until their parent’s status has finally been determined following an investigation.”

Within 12 weeks, the department of home affairs must file a report with the court confirming that all the blocks on children’s IDs have been lifted.

“This part of the order will provide 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 they have a parent whose ID has been blocked,” said Nyathi. 

The court also ordered that if a parent’s ID is under investigation, the department of home affairs must register the child’s birth as a citizen, permanent resident or refugee based on the parent’s current status on the national population register, and may no longer refuse to register the birth. In future, a child’s ID may only be blocked where a court order has been obtained.

Paula Proudlock, senior researcher at the Children’s Institute said: “We are very pleased by this relief as this is the main reason we entered the case.

“When children cannot obtain a birth certificate or identity document, it infringes on their rights to a name, nationality, and identity. 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 (NSFAS) funding, or applying for social grants,” said Proudlock. 

Liesl Muller, senior attorney at the Centre for Child Law, said children are individuals with their own rights and “should never be treated as mere extensions of their parents”. 

“Based on the order, we will now be advising mothers with blocked IDs to approach their local department of home affairs offices to register their children’s births and assist their children to apply for IDs.”