Lawyers for Human Rights in legal battle with Home Affairs over 10-year limbo identity document case

26 Feb 2023

Phindile Mazibuko hasn’t been able to travel, open a bank account or apply for citizenship for more than 10 years after Home Affairs flagged her ID document. Thousands of other people are in the same situation.

When Phindile Mazibuko was informed by her bank in 2012 that her identity had been stolen, she had no idea that the incident would still be hanging over her head more than 10 years later. For over a decade, Mazibuko has been fighting for the Department of Home Affairs to unblock her identity document, which was “marked”.

Mazibuko, a permanent resident from Eswatini who is married to a South African, has taken the department to court over her blocked identity document as she’s been unable to travel, open a bank account or apply for citizenship.

“I live in constant fear that I will be unable to make an application for South African citizenship or, worse, will be deported and separated from my family or that the police will show up at my house to arrest me. I am fearful of travelling and cannot visit my family in Swaziland as I am worried that the immigration officials will arrest me.”

Mazibuko says she lived, worked and travelled in and out of South Africa with her permanent residency permit between 1998 and 2012 without issue. She first found out about the issue via her bank, Absa, and then tried to rectify the situation through Home Affairs over several years.

“During my visit, I was advised by Absa bank that it appeared to them that someone had gained full access to my personal details — including my full name, fingerprints and a photograph of me, and that person was using such information to impersonate me. I was, of course, horrified at this revelation,” Mazibuko says in her affidavit.

When she visited Home Affairs, she was told there were two ID numbers reflecting on her name, one ending in 80 and one ending in 83.

She was asked to go to the police to make an affidavit and submit this, together with proof of her permanent residence. This would be used to investigate the matter. Mazibuko has asked the Pretoria High Court to interdict the department from taking any steps to intimidate her and to review the initial decision to mark her ID.

Thousands more affected

Mazibuko is not the only person struggling in identity document limbo. Lawyers for Human Rights (LHR) have applied to intervene in her case as strategic litigants, arguing that the issue of blocked IDs affects thousands of people.

“[The] LHR has over 100 active cases in which clients find themselves in the same position as [Mazibuko]. This in itself illustrates the pervasive problem at hand… According to public records, the number of people generally affected by the practice of blocking/marking IDs was estimated in 2020 to run to over 800,000 people,” says LHR national director Zibusiso Ncube in an affidavit before the court.

Ncube says some of their clients have had their identities blocked for more than a decade.

“This is significant because the practice of blocking or marking IDs effectively prevents clients from engaging with the world. They become ghosts in the system — they cannot obtain passports and travel, they cannot vote, they cannot access education and healthcare, they cannot open or operate bank accounts. As a result, they live lives of indignity and inequality, dependent on others to function in society and are vulnerable to abuse as a result.”

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Ncube says the current process used to block IDs is inconsistent with the “fundamental human rights embodied in the Constitution” and wants the court to make an order not only in relation to Mazibuko’s case but relating to the process used by the department.

LHR wants the court to order Home Affairs to ensure a just and fair process in which those affected are made aware that their IDs are blocked from the outset, given prior notice that their status is under investigation, written reasons for why the document has been blocked and the creation of an appeals process.

Ncube says the LHR’s Statelessness Project has 114 cases on file where people’s IDs have been blocked without them receiving notice. The clients were also not given a chance to make representations.

For the LHR’s clients, the block/marker is usually placed on persons because there are duplicate identity numbers assigned to them, “where they are suspected of being accused of being ‘illegal immigrants’, or when they are accused of obtaining ID documents fraudulently”, Ncube says.

“[The] LHR will show that the DHA [Department of Home Affairs] often makes the decision to block/mark IDs based on subjective, narrow and unsubstantiated views which are often based on discriminatory and arbitrary facts. These facts are often based on the shape and/or position of inoculation marks, record of frequent travel in and out of South Africa, an alleged deportation record, inability to speak a specific local language, bearing a surname that ‘sounds’ foreign, having one parent of foreign nationality or being married to a spouse of foreign nationality,” Ncube says.

He adds that there is no consistent process at Home Affairs offices to remove a marker.

“One local office might require certain documents that would not necessarily be required at another local office.”

Home Affairs blames Mazibuko

Home Affairs and Mazibuko had agreed to the LHR’s application to join the case, meaning the court will also hear the broader arguments of the organisation.

The Department of Home Affairs has responded to Mazibuko’s application, opposing her case. The department’s director-general, Livhuwani Makhode, has told the court that Mazibuko should have exhausted all internal remedies, including lodging an appeal after being told in 2019 that her ID would remain with a marker.

Makhode says there is no evidence of identity theft but that Mazibuko has made two separate ID applications, firstly applying for SA citizenship in 1997 using the late birth registration method and later applying for an ID document as a permanent resident.

The department has compared photos and fingerprints in both ID applications and they belong to the same person, says Mazibuko.

“No person is allowed to have two identity numbers. The applicant has two such numbers. The court has no power to lift a marker against an identity number where a person has more than one identity number. There are sound policy reasons that entitle placing a marker against an identity number. The circumstances pertaining to [Mazibuko’s] are one such case,” Makhode says.

“The first identity number could not have been issued without the applicant herself giving fingerprints. It is impossible for a person other than the applicant to have supplied the fingerprints used in the issuing of the first identity number. Mazibuko admits that all the fingerprints in issue match. They are her fingerprints,” he says.

Makhode has accused Mazibuko of committing fraud by applying for two identity documents.

“The issuing of two identity numbers could result only from a misrepresentation. The first identity number was issued based on the applicant being a South African citizen. The second identity number was issued to [Mazibuko] being a citizen of Swaziland,” Makhode.

He adds that the department is not required by law to inform anyone prior to investigating or marking their ID.

In her affidavit, Mazibuko says she has made numerous attempts to get the issue resolved internally.

“Since 2013 to date, I have made various attempts to contact the Lyttelton Home Affairs Office and the department to ascertain the outcome of the investigation. These attempts include numerous telephone calls over six years, numerous visits to various branches of the DHA and the erstwhile Minister of Home Affairs, Mr Malusi Gigaba on 19 June 2014 and 7 July 2014.”

“Until October 2020, I have been strung along by the DHA, including but not limited to the thematic responses such as ‘your complaint is still being investigated’ and ‘the investigating officer is still investigating your complaint’ and/or no response at all,” says Mazibuko.

She claims the department has adopted a “cloak-and-dagger approach” in dealing with her case, denying her “any opportunity to meaningfully respond to the serious, unfounded and defamatory allegations against me”.

“I was effectively denied an opportunity to respond to ridiculous assertions which were being proffered in a factual vacuum,” she says.

Home Affairs did not respond to follow-up questions from Daily Maverick.

A date is yet to be set for the case. DM

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Thousands more affected

Home Affairs blames Mazibuko