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”. 

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.

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. 

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.

www.samigration.com 

www.samigration.com

Proof of Permanent Residency ( PR)

Why does one do this 

Obtaining permanent residency is your ticket to securing a full-time residency in South Africa. This alleviates the headache of renewing your visa every few years while still enabling you to enjoy every moment of your stay in South Africa. This is why we call it “Permanent” residency. It is important to make sure that you look after your PR certificate. 

While obtaining your permanent residency is a joyous occasion, it is important to be able to produce a proof of permanent residency (PR) upon request.

A PR certificate is issued upon successful application for your permanent residency. The Department of Home Affairs (DHA) will only issue you this certificate once, therefore obtaining a certified copy and looking after your original copy is very important. The only time you will need to take your PR Certificate out of its safe place will be upon exiting South Africa and entering a new country. Obtaining a proof of residency letter can confirm your status and the legitimacy thereof. This can also function as a back-up if you lose your original copy saving you loads of stress if things don’t go your way.

If you happen to misplace your certificate, it is not the end of the world. Although you may only receive the certificate once, the application for “confirmation of status” solidifies your status as a permanent resident. This letter comes in the form of a permanent residency letter, which can be applied for before or after misplacing your original proof of permanent residency. You know the saying, better safe than sorry, as this letter can take upwards of 6 months to be approved. Try and obtain your confirmation of status letter as soon as possible!

Once you have obtained permanent residency certificate for South Africa, you need to make sure that you comply with any conditions listed on the bottom of the A4 page. If you are unsure about how to comply with the conditions on your permanent residency certificate, make sure to obtain legal advise so you do not invalidate all of the hard work that you have done to obtain your certificate. You also need to apply for your South African identity book and convert your driver’s license to a South African version.

To apply for naturalization as a South African citizen: If you are a permanent resident of South Africa and you want to apply for naturalization as a South African citizen, you will need to provide proof of your permanent residency status as part of the application process.

If you leave South Africa and do not return after three or more years, your permanent residency is at risk of being revoked.  It is strongly suggested to seek professional legal advice. This is only if you are leaving the country for extended periods at a time.

www.samigration.com

Govt to oppose order allowing 22 Afghan nationals into SA

Home Affairs Minister Dr Aaron Motsoaledi believes a US Non-Governmental Organisation is trying to use the legal system to undermine and ambush South Africa’s sovereignty. Motsoaledi has reacted to an order by the High Court in Pretoria that government grants asylum to 22 Afghan nationals.

The order was issued on Friday after lawyers representing a United States-based NGO approached the court on behalf of the 22 Afghan nationals.

The NGO argued that the group might be victimised by the Taliban regime which took power in August 2021.

“On the 14th our officials in Beitbridge received a letter written by a firm of lawyers saying that they have clients that are coming, 22 of them. We are warning them that you must be given a transit visa to enter South Africa and apply for asylum, they never named the clients, they didn’t even mention where they came from. While the people there were still surprised, 22 people arrived and said they’re from Afghanistan and they want to enter the country, their lawyers have given us prior notice and they were carrying visa from Zimbabwe,” says Motsoaledi.

Government slams call to grant asylum to 22 Afghan nationals

Meanwhile, Motsoaledi says government will be opposing the court order.

“Yesterday they went to court to get an interim order that we must allow these people to come in, the return date is on the 7th of March but that court order has been granted that we must allow them in, but the judge realised that we were not in court. We were not in court because they manipulated the law and processes because they know that we are in Pretoria but they served a junior person in Beitbridge through an email and the person was in the field and only saw the email after 4 hours and after 4 hours they had already been in court and got the order but the judge realised that we were not there and allowed us that we can do something within 24 hours.”

www.samigration.com