South Africa: Children’s Institute in Court tomorrow as amicus curiae in case against Department of Home Affairs, to highlight the severe harms to children when parents’ IDs are wrongly blocked

Published: 19/Sep/2023
Source: Children’s Institute (University of Cape Town) & Centre for Child Law (University of Pretoria)

Press statement: The Children’s Institute (CI) at the University of Cape Town, represented by the Centre for Child Law (CCL), will on Wednesday 20 September and Thursday 21 September provide evidence as an amicus curiae (friend of the court) to the Pretoria High Court, that highlights the harsh consequences for children whose parents’ IDs have been “blocked” by the Department of Home Affairs (DHA).

Parents with blocked IDs are unable to register their children’s births or to help them get their own IDs. This leaves children undocumented for years, infringing on their rights to a name, nationality, and identity. The CI’s evidence shows that undocumented children face a significant risk of being excluded from receiving social grants and attending school, even when they are legally entitled to this. Consequently, DHA’s practice of blocking IDs also limits children’s basic socio-economic rights.

The CI is asking the court to protect the best interests of children by making an order that will provide systemic relief not only for the adults affected, but also the interests of the children who are impacted.

Lawyers for Human Rights (LHR) is representing over 100 people in this court challenge. LHR’s court application asks the court to declare DHA’s conduct as unlawful and unconstitutional, and seeks an order to unblock the IDs. An ID is blocked when an ID number is flagged because it is tainted by an administrative error, or because of suspected fraud or misrepresentation. Affected people must then submit extensive documents to show citizenship or that they are entitled to the ID in question. They must also provide biometric data and participate in interviews held by an immigration officer, sometimes involving witnesses. As LHR explains, many cases remain unresolved because:

  • Some people cannot produce all the required evidence, especially those with unregistered births or parents who were unregistered (mainly due to inadequate civil registration records for black South Africans pre-1994); and
  • Despite DHA’s claim of a six to eight week investigation period, the majority of affected people experience excessive delays, often waiting for years for a resolution.

The CI’s case studies “The CI’s affidavits include case studies of four mothers who are South African citizens whose IDs have been blocked, resulting in their children’s births going unregistered for years,” explains Mbonisi Nyathi, a Legal Researcher at the CI. “The children have suffered being excluded from social grants in early childhood – the period when they need it most; along with delays in being admitted to school, being refused place at school, and being excluded from school programmes like access to free uniforms and participating in sport.”

The CI, through its legal services project, has over the past five years been helping parents/caregivers of children without birth certificates to get these documents, and have identified certain categories of children and parents/caregivers who are more likely to struggle to get birth certificates and/or ID cards. These include children whose mothers do not yet have her own ID, children in the care of unmarried fathers, abandoned or orphaned children in the care of relatives, and children whose mothers’ IDs have been “marked” or “blocked” by DHA. Due to the block on theìr mothers’ IDs, the children cannot get birth certificates and/or ID cards until the block has been removed by DHA.

Over 80% of at least 500,000 children without birth certificates are South African citizens
Using the General Household Survey and National Income Dynamics Survey (NIDS) data, the CI estimated that in 2017 there were about at least half a million (500,000) children in South Africa without birth certificates. In 2023, we believe that this number is likely to have increased significantly due to DHA offering fewer services in 2020 and 2021 during the COVID-19 period. The CI’s analysis of the profile of the children without birth certificates revealed that over 80% were likely South African citizens. The Department of Basic Education’s data, tabled by the DHA in its answering affidavit, shows that in 2022 there were 1,1 million learners attending public schools in South Africa without documents and at least 73% are SA citizens.

“The Constitution establishes the best interest of the child as a self-standing right, as well as the principle crucial to the interpretation of all other rights. The case against the DHA shows that there has been no consideration for the best interest of the children in the process of blocking the parents’ ID documents. The practice of ID blocking stands to be found unconstitutional on that basis alone,” explains Liesl Muller, Senior Attorney at the Centre for Child Law.

DHA’s processes must be just and fair

Our evidence shows that children’s births can remain unregistered for many years due to DHA blocking the IDs of their mothers without following a just administrative procedure, and ensuring that investigations into administrative errors by DHA, suspected misrepresentation or suspected fraud are completed timeously.

The evidence from the CI also shows that mothers only become aware of their IDs being blocked when they try to give notice of their children’s birth at DHA. There is no communication from DHA notifying them that their IDs have been blocked before this. In addition to this injustice, DHA does not provide written reasons before or after the blocking the ID, and there is also no prescribed form to lodge an inquiry or to start an investigation.

We do not know how many children are affected by DHA’s ID blocking practice. DHA revealed in 2020, in response to a Parliamentary question, that there were over 800,000 adults with blocked IDs. In May 2023, likely in response to the LHR’s application, DHA agreed to unblock 1,4 million IDs, due to not being a high security risk, leaving 700,000 still blocked. Each of these adults with their blocked IDs will likely have one or more children adversely affected by the block. We have asked DHA to provide statistics on how many children are linked in the National Population Register to these blocked adults so that we can get a better idea of the size of the challenge.

The relief that the CI is seeking from the court is child specific:

  • A declaration that the practice of blocking IDs violates the child’s right to have their best interests considered paramount, the right to a name and a nationality from birth, and the right to equality and dignity:
  • The DHA should not be allowed to refuse the registration of a child’s birth, based on their parent’s ID being blocked; and
  • DHA should also not be allowed to deny an ID number and South African citizenship to a child whose parent has a blocked ID. Instead, the child’s case should be assessed independently and following a fair administrative process – including providing the child personally or through a representative with written reasons and the opportunity to be heard, and their views to be considered.

Read original: here


Themes: Acquisition by children, Birth Registration, ID Documents and Passports
Regions: South Africa
Year: 2023