LegalWise Challenges Unlawful Blocking of Identity Documents in the Gauteng High Court

LegalWise South Africa's Impact Litigation Unit (ILU) will be represented in the Gauteng High Court, Pretoria on Wednesday 20 September 2023, to seek an order declaring that the Department of Home Affairs' current practice of blocking identity documents is unlawful and unconstitutional. This pivotal case arises from LegalWise South Africa's application on behalf of its Members, whose identity documents have been blocked by the Department of Home Affairs, despite efforts to rectify the situation. “Many of our Members have endured the burden of blocked identity documents for a period ranging from 3 to 10 years, a process we find neither just nor reasonable, and which contravenes Section 33 of the Constitution as well as sections in the Promotion of Administrative Justice Act,” stated Litha Stwayi, Manager of LegalWise’s recently launched Impact Litigation Unit.

Section 33 of the Constitution unequivocally states that "everyone has the right to administrative action that is lawful, reasonable, and procedurally fair, and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons."

When an individual's identity document is blocked, it casts a dark shadow over their lives. They are left in limbo, incapable of proving their identity, and deprived of the fundamental rights that come with citizenship and everyday life. Blocked identity documents hinder essential life activities such as marriage, banking, accessing medical aid, obtaining birth certificates for their children, seeking employment, applying for passports or driver's licenses, admission to hospitals, accessing healthcare, applying for social assistance through SASSA, enrolling in schools, and even exercising their right to vote. This infringement on the right to identification has a cascading effect on other constitutional rights, including equality, human dignity, citizenship, and freedom of movement.

In December 2020, the Minister of Home Affairs disclosed to Parliament that the Department of Home Affairs was grappling with over 800,000 cases of blocked identity documents. The reasons behind these blocks varied, ranging from duplicate identity documents (where one person has two identity numbers allocated to them); or where two people have the same identity number allocated to them to cases labelled as "fraudulent".

When individuals find their identity documents blocked, they are directed to submit an array of documents to validate their identity and citizenship. These documents may include birth records, school attendance records, affidavits or letters from teachers, traditional authorities, parents, grandparents' documents, and even DNA evidence. The core issue lies in the fact that, even after submission of these documents, the Department often fails to unblock the identity documents, leaving citizens without recourse and subjecting them to interminable waiting periods, sometimes spanning up to a decade. This protracted delay is in stark contradiction to our Constitution. ”The Department's assertion that the process takes 6 to 8 weeks starkly contrasts with the experiences of our Members, who have languished for 3 to 10 years without resolution. Crucially, none of our Members received prior notice of impending identity document blocks, nor were they afforded the opportunity to present their case for why their identity documents should not be blocked—direct violations of the rights to fair administration enshrined in Section 33 of the Constitution and the Promotion of Administrative Justice Act.”

“We hope through this application to compel the Department to create legislation and regulations that will provide legal certainty on the blocking and importantly unblocking of identity documents,” states Ms. Stwayi

For further information, please contact:

Litha Stwayi

Manager, Impact Litigation

LegalWise South Africa

010 271 2255

Lee Pillay

Manager, Media Relations

LegalWise South Africa (RF) Pty Ltd

010 271 2255