In a groundbreaking judgment, the Pretoria High Court has ruled in favour of the Children’s Institute (CI) at the University of Cape Town and the Centre for Child Law (CCL) in a case against the Department of Home Affairs (DHA) over its controversial ID blocking system. Picture: Timothy Bernard / Indpendent Newspapers
The Pretoria High Court has delivered a crucial verdict that promises to reshape how the Department of Home Affairs (DHA) handles the blocking of identification documents.
This victory, secured by the Children’s Institute (CI) at the University of Cape Town and the Centre for Child Law (CCL), marks a significant triumph for children's rights in South Africa.
The lawsuit, initiated by Phindile Mazibuko and later joined by advocacy groups including Lawyers for Human Rights and Legal Wise, challenged the DHA's practice of "ID blocking" — a process that has negatively impacted numerous individuals, particularly minors.
The CI, represented by CCL, intervened in the case to bring to attention the detrimental effects of blocking a parent's ID on their child’s fundamental rights to birth registration, identity, and nationality.
On Tuesday, the court issued a judgment compelling the DHA to cease blocking IDs without following due process.
This entails providing written notice of any issues found with an ID, allowing reasonable time for individuals to respond, conducting thorough investigations, and then explaining in writing why an ID is being blocked. Crucially, the DHA must now obtain a court order before any ID can be blocked.
Additionally, the court ordered the immediate removal of blocks from all minor children's IDs in cases where their parents' statuses are under investigation but unresolved.
The judgment also prohibits the DHA from refusing to register a child’s birth due to a parent's ID being marked and under investigation.
"The court has affirmed our position that it is unjust to penalise children for matters over which they have no power or influence," said Mbonisi Nyathi, a legal researcher at the CI.
He highlighted the court's recognition of the DHA's obligation to acknowledge the children's status (citizenship, permanent residence, or refugee status) until their parent’s status has been conclusively determined.
Within a 12-week timeframe, the DHA is required to report back to the court, confirming the removal of all blocks on children's IDs.
This directive is expected to aid children aged 16 to 18 who have been unable to use their IDs or obtain them due to their parents' blocked IDs.
Paula Proudlock, a senior researcher at the CI, expressed satisfaction with the judgment, sharing a poignant example of a client, Ms Zulu (a pseudonym), a South African citizen who faced severe difficulties in registering her triplets' births because her ID was under investigation. Proudlock's account highlights the indiscriminate nature of the blocking system and its harsh impact on citizens, permanent residents, and refugees.
The court's decision also addresses the plight of children unable to obtain birth certificates or identity documents, which infringe upon their rights to a name, nationality, and identity.
The CI's evidence demonstrated that such children risk being excluded from social grants and schooling, and adolescents without IDs face challenges in educational and financial opportunities.
Liesl Muller, Senior Attorney at the CCL, stressed the individual rights of children, separate from their parents, and called for the swift and clear communication of the court order to all DHA officials nationwide.
Nyathi added that they would now advise mothers with blocked IDs to approach local DHA offices to register their children's births and assist them in applying for IDs, in hopes that DHA officials will be informed and prepared to comply with the new court order.
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