Press statement: The Children\u2019s 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\u2019 IDs have been \u201cblocked\u201d by the Department of Home Affairs (DHA).<\/p>\n
Parents with blocked IDs are unable to register their children\u2019s 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\u2019s 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\u2019s practice of blocking IDs also limits children\u2019s basic socio-economic rights.<\/p>\n
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.<\/p>\n
Lawyers for Human Rights (LHR) is representing over 100 people in this court challenge. LHR\u2019s court application asks the court to declare DHA\u2019s 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:<\/p>\n
The CI\u2019s case studies \u201cThe CI\u2019s affidavits include case studies of four mothers who are South African citizens whose IDs have been blocked, resulting in their children\u2019s births going unregistered for years,\u201d explains Mbonisi Nyathi, a Legal Researcher at the CI. \u201cThe children have suffered being excluded from social grants in early childhood \u2013 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.\u201d<\/p>\n
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\u2019 IDs have been \u201cmarked\u201d or \u201cblocked\u201d by DHA. Due to the block on the\u00ecr mothers\u2019 IDs, the children cannot get birth certificates and\/or ID cards until the block has been removed by DHA.<\/p>\n
Over 80% of at least 500,000 children without birth certificates are South African citizens
\nUsing 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\u2019s analysis of the profile of the children without birth certificates revealed that over 80% were likely South African citizens. The Department of Basic Education\u2019s 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.<\/p>\n
\u201cThe 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\u2019 ID documents. The practice of ID blocking stands to be found unconstitutional on that basis alone,\u201d explains Liesl Muller, Senior Attorney at the Centre for Child Law.<\/p>\n
DHA\u2019s processes must be just and fair<\/p>\n
Our evidence shows that children\u2019s 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.<\/p>\n
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\u2019s 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.<\/p>\n
We do not know how many children are affected by DHA\u2019s 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\u2019s 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.<\/p>\n
The relief that the CI is seeking from the court is child specific:<\/p>\n