In a groundbreaking verdict, the Pretoria High Court has delivered a transformative decision that is poised to reshape the Department of Home Affairs’ (DHA) approach to blocking identification documents. This significant win, championed by the Children’s Institute (CI) at the University of Cape Town and the Centre for Child Law (CCL), represents a major stride forward for children’s rights in South Africa. The legal battle, spearheaded by Phindile Mazibuko and supported by advocacy groups such as Lawyers for Human Rights and Legal Wise, challenged the DHA’s practice of “ID blocking,” a process that has adversely affected numerous individuals, particularly minors.
The CI, represented by CCL, intervened in the case to highlight the detrimental impact of blocking a parent’s ID on a child’s fundamental rights to birth registration, identity, and nationality.
The court, in its Tuesday judgment, mandated the DHA to cease blocking IDs without following due process. This involves providing written notice of any issues found with an ID, allowing adequate time for individuals to respond, conducting thorough investigations, and explaining in writing the reasons for blocking an ID. Importantly, the DHA must now obtain a court order before blocking any ID.
Furthermore, the court directed 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. Mbonisi Nyathi, a legal researcher at the CI, emphasized the court’s affirmation that penalizing children for matters beyond their control is unjust. The court recognized the DHA’s obligation to acknowledge the children’s status until their parent’s status is 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 benefit children aged 16 to 18 who faced challenges in using or obtaining IDs due to their parents’ blocked IDs.
Paula Proudlock, a senior researcher at the CI, expressed satisfaction with the judgment, citing an illustrative case where a South African citizen, Ms. Zulu, encountered difficulties registering her triplets’ births due to her ID being under investigation. The ruling addresses the indiscriminate impact of the blocking system on citizens, permanent residents, and refugees.
The court’s decision also addresses the predicament of children unable to acquire birth certificates or identity documents, infringing upon their rights to a name, nationality, and identity.
Liesl Muller, Senior Attorney at the CCL, underscored the individual rights of children, separate from their parents, and called for the expeditious and clear communication of the court order to all DHA officials nationwide.
Nyathi added that mothers with blocked IDs would now be advised to approach local DHA offices to register their children’s births and assist them in applying for IDs, with the hope that DHA officials will be informed and prepared to adhere to the new court order.