The High Court South Africa, Gauteng Division has handed down a Judgement pertaining to the process of blocking Identity (ID) numbers (provided to South African Citizens and Permanent Residents) by the Department of Home Affairs (DHA).
Essentially the DHA has in place a process whereby they place a โmarkerโ on suspicious ID numbers which results in the blocking of that person’s ID. This practice is done by the DHA in order to safeguard the population register and the public against identity theft, fraud, duplicate IDs, etc.
This being said, the major problem with this practice to date is that the blocking of an ID is being done without following just an administrative process and before a final decision on whether the ID is indeed fraudulent or not, is made. A mere suspicion that an ID may be fraudulent can result in the blocking of an ID.
The effect is that the holder of the blocked ID is prevented from utilising their ID, which is required for almost all day-to-day activities, including access to housing, education, participation in elections, healthcare services, freedom of movement, and economic life. They are also unable to marry or bank.
The block on a suspicious ID, further extensively affects the children of the people whose IDs have been blocked, pending an investigation, as they are unable to receive birth certificates or ID cards.
To date, DHA has relied on S18 and 19 of the Identification Act as the enabling legislation authorising them to block IDs. Whilst these sections do not refer to โplacing a marker againstโ or โblock and IDโ, it does empower the DHA to seize an ID that does not correctly reflect the particulars of the person to whom it was issued. The court agreed that in the current climate, this should be reasonably expected to include placing a marker or block against an ID.
Having said this, the above provision does not allow for the seizing of an ID before a final decision is made and an investigation completed.
This is not provided for in the law or in the enabling legislation cited by the Department and it was stated that the administrator who decides to place a mark against an ID that automatically results in the blocking of the ID during the investigative phase of any inquiry, is not empowered to do so by a law of general application.
During the court proceedings, DHA conceded that the decisions taken to block IDs before November 2022, were taken without regard to administrative justice. This constitutes unjust and irregular administrative action and infringes the constitutionally entrenched right to procedurally fair administrative action.
As correctly acknowledged by the Judge, this is no consolation to the hundreds of thousands of individuals affected by the practice of blocking IDs.
Whilst the court agrees that in certain instances the blocking of an ID is justified and required, it stipulated that this can only be so after a fair administrative process is followed and a final decision is taken to revoke, cancel, or withdraw a birth certificate or ID.
As a result, the court found that the placing of markers against ID numbers resulting in the blocking of IDs, in the absence of a fair administrative process and any empowering legislation before a final decision is taken, constitutes unjust and irregular action that is inconsistent with the Constitution and invalid.
The court has decided to suspend the declaration of invalidity for a period of 12 months and has instructed the DHA to finalise the pending investigations of all IDs blocked before November 2022 (of which there are about 700 000) within this period. Should DHA fail to finalise its investigation, the IDs will automatically be unblocked, unless DHA obtains a court order in respect of each ID, they wish to keep blocked pending the final outcome of an investigation,
The DHA must further immediately revoke the blocks on the IDs of all minor children whose parentsโ statuses as South Africa Citizens or Permanent Residency holders have not finally been revoked or withdrawn.
In the absence of a court order or legislation to the contrary being promulgated, any minor child born from parents who are registered in the national population register as South African Citizens or Permanent Residents, shall be issued with a birth certificate and an ID number, irrespective of whether any investigation regarding the validity of the minor childโs parents remains pending.
Future blocking of IDs is not to be done until a final decision has been taken in terms of applicable legislation following a fair administrative process. Unless they have specifically obtained a court order to do so, DHA is interdicted from proceeding with the practice of placing markers against ID numbers that will result in the automatic blocking of IDs unless a final decision is taken that follows a procedurally fair process.
This judgement marks a great relief for several South African Citizens and Permanent Residents affected by the blocking of IDs to date, some of which have had their IDs blocked – pending an investigation – for over 10 years.
This violation by the DHA, the prejudice caused (particularly to minor children), and its lackadaisical approach to investigate and resolve underlying issues in any manner other than randomly blocking IDs justified the granting of a punitive cost order in the matter, and the court warned in its judgement that 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 must file an affidavit by 01 March 2025 confirming that the terms of the judgement have been executed.
Read the full judgement here.
