To give effect to this fundamental right, the mandates that every child’s birth must be registered with the department of home affairs. Photo: Supplied
Every child has the right to a name and a nationality. This right is guaranteed not only under the Constitution, but in international law as well, and accrues to children independent of their parents.
To give effect to this fundamental right, the mandates that every child’s birth must be registered with the department of home affairs (DHA), creating a record of the child through the issuing of a birth certificate.
The Regulations on the Registration of Births and Deaths prescribe the minimum requirements for parents or guardians to register a child’s birth, including proof of birth; biometrics of the child in the form of a palm, foot or fingerprint and a certified copy of the parents’ identity document or valid passport and visa or permit, among others.
Birth registration serves an enabling purpose and is essential to access education, healthcare and social services. Later in life, birth certificates allow us to apply for an identity document, which is tied to the right to vote and work.
In the absence of a birth certificate, many of the rights constitutionally guaranteed to children are illusory. Without a birth certificate, children are undocumented and legally do not “exist” to the state — they are invisible.
Over the past decade, the Legal Resources Centre (LRC) has been inundated with requests from parents who have tried to register their children’s births without success.
One of our clients Anathi* was, to the best of her knowledge, born in the Eastern Cape. While her parents did not register her birth, Anathi has a copy of her clinic card and her mother’s old South African identity document. Anathi’s mother died when she was seven years old and she does not know her father.
After her mother’s death, Anathi was placed in an orphanage in a different province where a social worker tried to register her birth countless times without success. Each time, a DHA official asked for more or different documentation — her mother’s death certificate, her mother’s identity document, confirmation from the clinic where she was born or, if she was born at home, a letter from the tribal chief in the area where she was born.
When she turned 18, Anathi again tried to register her birth, this time on her own. She travelled to the Eastern Cape and obtained the letter from the chief. Back home, Anathi was confident that she would finally be able to register her birth.
But she was turned away. “We do not deal with people coming from other provinces,” she was told. Anathi was defeated. She could not afford to travel to the Eastern Cape again.
Anathi is turning 23 and remains without a birth certificate. While she has two daughters, she has not attempted to register either of her children’s births since she is undocumented and she knows that the DHA will not help her.
Anathi’s experience illustrates that, even with assistance from social workers or legal professionals, the challenge remains that the regulations and their implementation exclude some children from birth registration, whether due to the DHA’s failure to implement the regulations or because the regulations do not provide for these children.
These children fall into four categories. First, although the regulations allow parents who are citizens, permanent residents or refugees to register their children’s births, the DHA refuses to register the births of children where one of the parents is undocumented or has an expired visa and/or passport. These children are denied birth certificates because the DHA fails to implement existing law that includes them.
The second and third categories of children excluded from birth registration are those with parents who are asylum seekers with expired permits or undocumented migrants and/or children whose parents are asylum seekers or undocumented individuals who tried to register the births of their children after 30 days. The regulations are silent on providing birth certificates to these children.
The fourth and final group excluded by the regulations are individuals who were abandoned or orphaned as children — whether by South African or non-national parents — and whose births could not be registered due to the lack of requisite documentation to determine parentage.
The regulations also do not provide for the self-registration of abandoned children who are now adults. The exclusion of these adults, in particular, serves to perpetuate a cycle of exclusion — they also cannot register their children’s births without having registered their own births.
On 15 October 2022, the LRC launched an application in the Cape Town high court on behalf of 17 parents representing 21 children who fall into one or more of the four categories above and have been denied birth certificates. The application was brought against the director general of the department of home affairs and the minister of home affairs, who are opposing this application.
The court is asked to declare the Regulations on the Registration of Births and Deaths as unconstitutional and invalid insofar as their implementation or wording excludes the four categories of children outlined above from birth registration.
The court is further asked to direct that the regulations be amended to ensure access to birth registration for all children, regardless of their parents’ status.
The constitutional and legal flaw in the DHA’s documentation requirements is their unconditionality, which serves no legitimate purpose other than to deny children the right to birth registration. Issuing birth certificates to children where parents are non-nationals also does not make them citizens or permanent residents of South Africa — children take the nationality of their parents.
While identifying parents is a legitimate purpose, it is not necessary to require that parents’ documents be valid at the time of birth for registration since an expired document still proves identity and alternative means, such as affidavits, could serve the same purpose.
The regulations should therefore be amended to clarify that, while available documentation of parents can be produced to help certify the child’s birth, these specific documents are not a necessary prerequisite to registration.
The fact that, in 2020, the department released a draft Identity Management Policy proposing the use of biometrics for birth registration proves the achievability and availability of these alternative means.
Every child has a right to have their birth registered immediately or as soon as possible after they are born. To secure a safe, fair and inclusive system of birth registration, the Act and its regulations must be amended to ensure that all children born in South Africa are provided with a birth certificate, no matter who their parents are.
* Not her real name
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.