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

Daily Maverick SA | 01 March 2023

hen 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.”

Visit Daily Maverick’s home page for more news, analysis and investigations

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.

www.samigration.com

Zimbabwe: Returning Citizens From SA Need to Be Accepted

The Herald | 01 March 2023

OVER the next four months, around 178 000 Zimbabweans will be coming home from South Africa as their special Zimbabwe Exemption Permits expire with President Mnangagwa, while not underestimating the strains of relocation, seeing this large group as a huge resource to accelerate Zimbabwe's development.

To understand his optimism, we need to think just who these 178 000 are. They range in age from small children to people of retirement age, but most are skilled adults in the midst of their working life who are earning a living legally in South Africa.

Even more critically, they are honest and hard working. Our border jumping criminals and the like never won the special permit. Another group were able to get the employer-sponsored residence permits so they can stay.

So the adult earners in the 178 000 are the middlers, in South Africa legally, staying clear of crime, probably paying taxes and generally a credit to their country.

Most left when our economy was under-performing, and they needed to earn a living somewhere else, and in the circumstances at the time South Africa gave these special permits, but that was about all the assistance this group received.

They were not eligible for the special programmes or special employment openings created for South African citizens, or for that matter bank loans and the like when they arrived there.

So we can further. Besides being in general skilled and hardworking they are also innovative and were able to see openings in South Africa they could fill.

They had to start up in a new country and earn their keep, building their skills and in many cases must have become self-employed or at least special contract workers.

So in one sense they are prepared from this previous experience for their return, ready to once again start afresh in another country and continue building their lives and working to support themselves and their families.

They do of course need the environment to do this. They left because there were close to zero opportunities in a declining economy.

They are returning to a quite different country, with a booming economy and a lot of new openings, especially for the upper levels of the skilled self-employed and those running their own small businesses.

As President Mnangagwa noted over the weekend, now the Zimbabwean economy is growing properly the opportunities exist for skilled people, or people with the basic skills who are quickly trainable in what we need.

So an influx of skilled hard-working and honest people cannot only be absorbed, but can be quickly contributing to their homeland.

Of course there will be some, as he noted, who will need special help since they are not skilled, or at least are under-skilled, but the Government is gearing up to give these people the chance to learn how to support themselves.

There will be strains, at least at first, for accommodation and the like, although we need to remember that the 178 000 are not moving into one town, or one district or one city but come from all parts of Zimbabwe so will be fairly spread out on their return, and in almost all cases will have fairly close family somewhere in Zimbabwe. So while many will need some help with relocation, this is not something that is unmanageable.

Even if their sort of business or skills need some sort of urban setting, they can still be spread out. During Covid-19, tobacco deliveries and supplies were decentralised, and those small stagnant towns across the tobacco belt suddenly started booming.

This year we are expecting bumper harvests in other crops, and so we are likely to see the same in other small towns as a lot of farmers suddenly have money in their pockets.

The Government is sending down a team to South Africa to start putting together the statistics we need to help the returning thousands.

We need to know what they are now doing to earn a living, so we can help move them into a place or position where they can do the same here. We need to know their skills, along with their experience the vital addition that turns a person recently out of training into someone who is really useful.

We need to know where they are likely to be moving to, and how many children they have, so we can make sure there are school places nearby and the children can move from say Grade 3 to Grade 3 in the middle of the year.

We need to know what sort of assets they have. Some will have vehicles, some will have the tools of their trade, everything from computers and ancillary ICT equipment to the tool boxes mechanics and others carry around.

Here it would useful if the Government could speed up some of the processes, and make them one-stop. While a returning resident can import vehicles, work equipment and household goods, there can be the odd problem that some have not been away for long enough, so an exemption is needed, plus the sheer procession through tax, police and vehicle registration offices to register an imported vehicle.

A one stop centre for that would help the returnees, and incidentally could be kept for those already living in Zimbabwe.

There are other things, some in the tax line, like being able to come home with their mobile phones duty free and have the Zimbabwean settings done without that extra tax. There will be a lot of these sort of small exemptions and changes in our regulations to make life a lot easier.

Perhaps the South African and Zimbabwe Governments could work out a low-cost solution to the actual moving of furniture and household goods, and even make this free either for all or at least for those without much money.

Our banking system needs to make it easy for returning people to open bank accounts and either move their money north or at least be able to access their South African bank accounts from their Zimbabwean bank.

The President is correct in his focus on looking at how the returning Zimbabweans will benefit the country and fill skills gaps we have as the economy grows ever faster.

He has also made it clear that the Government will be assisting everyone coming home to relocate here, and while this will need some money, we will get it back as the returnees start earning a living back home and pay taxes, even if it is only VAT on what they buy in the early stages.

The rest of us need to be willing to make our returning fellow citizens feel welcome, and be willing to help them settle down.

They are not strangers, they are us. And we all need to remember that these were people who were hardworking honest people, whose permits expired rather than being pulled after they committed some sort of crime.

So they will be soon earning their living back home and building their own country.

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

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”.

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.

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

Visit Daily Maverick’s home page for more news, analysis and investigations

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

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

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.

“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.

www.samigration.com

Can I get an ID if I was born in SA to foreign parents but my uncle has a valid South African ID?

SA Migration | 27 February 2023

The short answer

Possibly. In terms of the 2018 judgement in the Naki case, Home Affairs should accept and consider your application.

The whole question

I was born in South Africa, although my parents are foreign. I am currently undocumented and cannot further my studies (I have completed matric). I only have a birth clinic card. My father returned to his country and my mother has disappeared. The only family I have left is my father's younger brother who has a valid South African ID. What can I do to get documented?

The long answer

As you were born in South Africa to foreign parents, you can apply for South African citizenship when you are eighteen, if you have not lived anywhere else but South Africa, and if your birth has been registered under the Births and Deaths Registration Act of 1992. (This is in terms of the amended Citizenship Act.)

But as your birth was not registered under the Births and Deaths Registration Act, you need to apply for a birth certificate in “late registration of birth”. It is a long and difficult process, especially as your parents have left the country, but at least there is your father’s brother who will have to stand in and assist you.

As you are older than 15 years, you would need to provide the following documents to Home Affairs (DHA). You can get the forms from their offices:

• Application for an ID (Form B1-9);

• Completed Forms DHA-24, DHA-24/A x 2 and DHA-288 for the registration of birth;

• Supporting documentation like proof of birth, clinic card etc, as well as written reasons why the birth was not registered within 30 days of birth;

• Fingerprints of parents or adoptive parents;

• Your biometrics (fingerprints);

• Certified copies of parents’ IDs, or asylum permit etc;

• Certified copy of ID of next of kin (this would have to be your father’s brother).

Even though it probably won’t be possible for you to produce all these documents, and neither of your parents can be there, your application must still be accepted and considered by Home Affairs in terms of the Promotion of Administrative Justice Act of 2000 (PAJA), which gives effect to the constitutional right to administrative action that is lawful, reasonable and procedurally fair.

In the 2008 Naki case in the Eastern Cape High Court, the court ruled that the Births and Deaths Registration Act should be read to mean that both parents’ documents must be presented “where possible” when registering a birth. This is because the court took into consideration the difficulties that an undocumented parent/s would experience in trying to register the birth of their child

www,samigration.com

Are foreign nursing diplomas valid in South Africa?

27 Feb 2023 | GroundUp

The short answer

It depends. The South African Nursing Council will recognize your qualification if it meets certain criteria.

The whole question

I am an asylum seeker with a nursing diploma from my country of origin. Does my diploma have any value in South Africa? Can I work here? Can I go to university?

The long answer

In the first place, asylum seekers do have the right to look for work in South Africa. But as to what value your diploma has in South Africa, that is a question that can only be settled by the South African Nursing Council (SANC).

The SANC is the statutory body that regulates the nursing profession in South Africa. It sets standards for nursing education and training as well as standards for practising nursing. It is the body that registers all learner nurses/midwives as well as trained nurses, which includes foreign nurses. Thus, SANC processes applications from foreign nurses and midwives who hold qualifications from a foreign country. Asylum seekers have the right to apply to the SANC for registration.

The SANC must evaluate the foreign qualification in terms of the South African Qualifications Authority (SAQA) and the National Qualifications Framework (NQF). The SANC will recognise the foreign qualification after it has conducted the evaluation and the foreign qualification has met all the required verifications.

South Africa has three categories of nurses: professional (registered) nurses with four years of training; enrolled nurses with two years of training, and nursing assistants or auxiliaries with one year of training.

A diploma is NQF level 6 and in nursing means that a person can go on to register as a general nurse.

The Western Cape government says that “The Diploma in General Nursing (R171) is a three-year programme, leading to registration with South African Nursing Council as a General Nurse. The programme consists of a theory and clinical component which must be completed in each academic year.”

The SANC website says that for foreign nationals, the following documents must be submitted when applying for registration:

• Letter of intent/application;

• Curriculum Vitae;

• A letter of support to write examinations in South Africa from the National Department of Health (NDoH) and Foreign Workforce Management (FWMP);

• A certificate of English Language Proficiency obtained from an accredited institution (only for applicants whose nurse education was not done in English). The acceptable band for International English Language Testing System (IELTS) is 6. Only certificates from international recognized testing centres will be considered;

• Evaluation certificate of foreign educational qualification by the South African Qualifications Authority (SAQA);

• Certified copy of official passport or South African identity document (except refugees who will submit the permit from Department of Home Affairs);

• Certified copy of registration certificate of the Regulatory Body from the country of origin;

• Certified copy of qualification certificate;

• Valid license to practice as a nurse from the nurse’s Regulatory Body where the applicant’s nursing qualification is registered;

• Record of education and training (transcript) from the Nursing Education Institution in the country of origin;

• Verification certificate from the Regulatory Body of country of origin confirming that the applicant is in good professional standing and has no professional cases pending against him/her (except for refugees);

• Application form duly completed by the applicant himself/herself which can be downloaded at www.sanc.co.za;

• The applicable non-refundable application fee;

• Certified copy of marriage certificate where applicable;

• Letter of competence from the last employer;

• Police clearance letter from country of origin.

(Presumably in the case of asylum seekers who may well not have access to all these documents, sworn affidavits must be made.)

SANC goes on to say that “It is the responsibility of each individual to approach SAQA and NDOH for SAQA evaluation certificate and the endorsement letter from NDOH.”

In terms of studying at university:

To upgrade from a diploma to a degree: “Students who successfully complete a National Diploma course can enrol for a Bachelor of Technology (BTech) degree in the same field of study. Duration of study: Full-time 3 years / Part-time 4 years.”

The SANC says that refugees and asylum seekers who wish to undergo post-graduate studies will first be examined by the SANC as General Nurses for the R683 programme. The R683 programme is a bridging course for enrolled nurses leading to registration as a general nurse (SANC regulation no. 683).

University of the Witwatersrand (Wits) says that “International students are required to obtain Limited Registration with the South African Nursing Council before they are permitted to commence with any practical requirements. The Department of Nursing Education will facilitate the process with the South African Nursing Council on completion of registration.” For further information regarding Limited Registration with the South African Nursing Council refer to www.sanc.co.za.

Wits also says: “The University has an International Office which offers assistance to international applicants and helps them with the procedures they need to follow. In order to register at the University, please check all requirements on the International Office website.”

Tel: +27 11 717 1054

Email: studysa.international@wits.ac.za

These are the contact details for the South African Nursing Council (SANC):

Address: Cecilia Makiwane Building,

602 Pretorius Street,

Arcadia, Pretoria,0083.

Telephone (Call Centre): 012 420 1000, 012 420 1000

Email: customerservice@sanc.co.za

You can find more information on the registration process on the Nursing Council website or contact them at 012 420 1000 or registrar@sanc.co.za.

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

Thousands more affected

Home Affairs blames Mazibuko

Zimbabwe: Returning Citizens From SA Need to Be Accepted

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

Home Affairs blames Mazibuko

Can I get an ID if I was born in SA to foreign parents but my uncle has a valid South African ID?

Are foreign nursing diplomas valid in South Africa?

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