information on asylum in south africa

Information about asylum in South Africa

National Action on Racism and Xenophobia

Did you know that the South African government has committed to combatting racism, xenophobia and related intolerance? This was confirmed in the government’s National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP-19).

Our #NapMap19 infographic series explores the NAP-19 and what it means for South Africa.

Click on the image to navigate through the infographic. If you are on your mobile, just swipe!

Asylum, Refugee and Migration Statistics South Africa

Want to separate fact from fiction when it comes to migration flows to South Africa? Our updated and sourced asylum, refugee and migration statistics for South Africa aim to clearly set out the real numbers for you. See the text below each image for hyperlinked sources to the data.

Only 3-7% of those living in South Africa are foreign nationals (source). This statistic will be made clearer at the next national census, which is due in 2021.

Statistics not available for 2019, however, in 2018, 18,104 asylum applications were made in South Africa4(source).

Statistics not available for 2019, however, in 2018, 18,104 asylum applications were made in South Africa4(source).

In 2009, 157,204 asylum applications were lodged. This then fell steadily from 2009 – 2011, rising slightly between 2013-2015. Since 2016, the number of asylum applications have been falling steadily hitting 18,104 in 201 (source).

South Africa had 18,104 applications in 2018 and this is less than some other countries in Africa. For example, in 2018, Kenya had 19,3805 and Uganda had 19,6556 individual new asylum applications respectively. (source).

In 2019, 676 300 asylum seekers applied for international protection in the 27 current Member States of the European Union, up by 11.2 % (source).

As of 2019, 89 588 people hold refugee status in South Africa. (source).

Somalia, Democratic Republic of Congo, Congo Brazaville, Ethiopia,Burundi and Zimbabwe (source).

Democratic Republic of Congo, Somalia, Ethiopia, Nigeria, Zimbabwe, Bangladesh and Pakistan (source).

It is not possible to track and give an accurate figure of undocumented people in South Africa, the data currently reports on the number of foreign nationals living in South Africa and they are estimated to be between 3 and 7% of the total population (source).

An Amnesty International report found that poor decision-making, including mistakes of fact and lack of sound reasoning by RSDO’s has resulted in a 96% rejection rate of asylum applications (source).

The Refugee Appeals Authority has a backlog of 147 794 cases.

The Department of Home Affairs did not know how many of the 946 314 inactive section 22 applicants (as at 31 December 2017) were still in the country as the various systems were not integrated (source).

Infographic: Applying for Social Relief of Distress Grant

Eligible asylum seekers and special permit holders (Zimbabwean Exemption Permit, Lesotho Exemption Permit, and Angolan Special Permit) can apply for the SASSA Covid-19 Social Relief of Distress grant. Applications must be made on the SASSA web application portal, or by whatsapp using the details on the SASSA website. You may be eligible to apply if your asylum document or special permit was valid on 15 March 2020 (the date that the State of National Disaster in  South Africa was declared). See our information sheet below, as well as the SASSA website and FAQs for more information.

Apply at: https://srd.sassa.gov.za/

PLEASE NOTE: When you get the relevant step in a drop down menu make you select the correct permit. It will ask you if it is a special permit and what type (ASP/ZEP/LSP) or an asylum seeker document.

Infographic and Explainer: UIF TERS Scheme

This short article and infographic aims to make information available regarding the COVID-19 Temporary Employee / Employer Scheme (C19 TERS Scheme), with a focus on non-citizens in South Africa. The C19 TERS Scheme is ultimately for employees who were employed, but not working, during the national lockdown.

If you have any questions related to C19 TERS, you should contact the UIF CALL CENTRE : 0800 030 007. The UIF regularly posts updates on the UIF Twitter and Facebook.

Important update!

The C19 TERS scheme has been extended to 15 March 2021. The extended period is broken up into two claim & payment periods: 16 October to 31 December 2020, and 1 January to 15 March 2021.

The new extension only applies to employees within those sectors whose employers have not been able to operate fully due to restrictions, and will only apply to employees who are contributors to the UIF

This means an employee who has not been able to work normally only qualifies to receive C19 TERS benefits if they are registered as a UIF contributor and work within a sector or business identified by the Department of Labour.

Other eligible persons may include those in isolation and quarantine (due to Covid-19), persons aged or older who cannot be safely accommodated at work, and persons with comorbidities (or persons at increased risk of severe illness from COVID-19, and those who live with them) who could not be safely accommodated at work).

See the UIF’s FAQ on the C19 TERS Extension here.

Persons whose employment continue to be impacted by the national state of disaster (eg. working short time, shift rotations, temporary layoffs) but who do not work in the sectors specified for coverage under the new extension period may wish to pursue normal UIF benefit option, such as Reduced Work Time, by reaching out to the UIF CALL CENTRE (0800 030 007), or applying at the nearest Labour Centre or online here.

(1) What is C19 TERS?

The State of National Disaster declared by the South African government, and the National Lockdown that was enforced, meant that many people were not able to go to work. It also meant that many businesses stopped operating, which impacted people’s income. In response the National Lockdown, the SA government, through the Department of Labour, set up the COVID-19 Temporary Employee / Employer Scheme (C19 TERS) for the period of March 2020 to 15 March 2021 to assist employers. The C19 TERS benefit pays a limited portion of the salaries of employees where the employer had to close operations (completely or partially) due to the lockdown.

There are specific criteria that apply. Also, C19 TERS is separate from normal UIF benefits, and normal rules around a contributor’s credits do not apply under this scheme (under normal benefits, the total amount benefits received is subject to how long a employee has been contributing to UIF, or how many credits they have accrued).

C19 TERS benefits only pays a portion of the employee’s salary. An employer may contribute to the benefits for an employee, however the employee cannot receive more than 100% of their ordinary salary (including taking into account any payments received from the UIF in terms of the scheme). You cannot receive normal UIF Benefits and C19 TERS for the same time period. If you are recently unemployed (you been recently dismissed or retrenched). See Question 15, below.

(2) Who applies, and how do they apply?

Employers should make applications on behalf of their employees. Benefits will either be paid first to the employer, who then pays the employee, or directly to the employee (depending on the option selected when the application is made). Following the Amended Directive of 26 May 2020, persons eligible to benefit from C19 TERS include employees contributing to UIF AND employees (as defined by the UI Act) who should have received benefits under the directive but for circumstances beyond their control the employer failed to: register as an employer; register the employee with UIF as a contributor; or, make contributions in respect of the employee. However, this may only apply to the 27 March to 15 September 2020 time period.

During the new extension period (16 September 2020 to 15 March 2021), a person has to registered as a UIF contributor and meet other relevant criteria in order to be eligible.

Employers intending to apply can send an e-mail to Covid19ters@labour.gov.za for information and can apply online. Additional information for employers is available online here, via a guide here, and on the Dept of Labour site here. Employers can also contact the UIF Call Centre for assistance (0800 030 007). The Department also releases information on its social media pages – Instagram, Facebook and Twitter. If an employer has failed to initiate this process, the employee should contact the UIF Call Centre for assistance (0800 030 007), and they may need to lodge an individual application (see question 4).

(3) How can I check up on the status of the application for C19 TERS benefits that was made on my behalf?

If your employer applied on your behalf, confirm which identity number they used in the application, and which months they applied for – it could be one, two or all three of the months mentioned above. It is useful for them to write out exactly which identity number they used so there are no errors when you check the status of the application using that number. You can check the status of the application for benefits (month by month) by using the Payment Status tool on the UIF-Covid-19 TERS National Disaster Application System, available here. When you check your Payment Status, you may encounter one of these messages:

“No employee found”

This could mean you entered the wrong identity number, there was an error when the application was made or the receipt of the relevant documents has not been processed yet, or your employer did not apply on your behalf. Confirm with your employer that you entered the correct number. If your employer confirms you entered the correct number, and they are sure they applied on your behalf, they should follow-up with the Department by contacting the UIF Call Centre (0800 030 007) (they should also confirm that you are registered on the uFiling online system). If you believe your employer did not apply on your behalf, contact the UIF Call Centre (0800 030 007) or go to the nearest Labour Centre for assistance.

“Application not processed yet”

This means that the application made on your behalf has been received, however the Department is still processing it. If the status of the application says it is not processed and this does not change, it may mean that your identity number still needs to be verified, there are supporting documents which are missing, or there are other issues which need to be rectified. You should ask your employer to follow-up with the Department by contacting the UIF Call Centre (0800 030 007)

“Payment Processed”

This means the payment of benefits has been made. In most cases, the payment is made into your employer’s bank account – this would usually be the business bank account or the bank

account that your employer uses to pay salaries. After the Department pays the benefits to the employer, it may take 7 to 10 days to be reflected in their account. Once payment has been received by the employer, the employer is obliged to pay the benefits to the employee within 48 hours.

If you have not received the benefits within a reasonable time, you should follow up with your employer. If you have any concerns, you can follow-up with the Department of Employment and Labour by contacting the UIF Call Centre (0800 030 007). If you encounter a message different from one of the above, contact the UIF Call Centre (0800 030 007) for information or assistance.

(4) What if my employer did not apply on my behalf?

If you believe your employer did not apply on your behalf, you should confirm with them, in writing, whether they have made the application. An employee should not make an application on their own behalf when an employer has already applied on their behalf as this could be considered fraud. If you are confused about this, always try to check with your employer and the UIF call centre.

If your employer did not apply on your behalf, you should contact the contact UIF Call Centre for assistance (0800 030 007), and you may need to lodge an individual application for C19 TERS benefits here by selecting “Employee Applications”. The Unemployment Insurance Fund COVID-19 TERS – Employee Application User Guide is available online here. If your employer falsely led you to believe that they applied on your behalf but in fact did not, you can contact the UIF Call Centre (0800 030 007) for information or assistance or approach the nearest Labour Centre. You may also consider approaching the CCMA.

(5)What if my employer is not following-up on my application?

An application may be delayed for various reasons, including errors made during the application. If your employer applied on your behalf, it is their responsibility to follow-up on the application. If your employer fails to follow-up on the application, you should contact the UIF Call Centre (0800 030 007) for information or assistance or approach the nearest Labour Centre. You may also consider approaching the CCMA.

(6) Can I benefit from C19 TERS if I am not a South African citizen (an asylum seeker, refugee, or migrant employee)?

Yes, as long as you have the appropriate documentation allowing you to legally work in South Africa. Your employer should apply on your behalf using the identity document that allows you to legally work in South Africa.

As a migrant employee, this may be your Passport and Work Permit, including a Zimbabwean Special dispensation Permit (ZSP), Lesotho Exemption Permit (LEP); or Angolan Special Permit (ASP). This could also be a person in possession of an asylum seeker or refugee document.

If you are a Permanent Resident, this might be non-citizen’s ID (green ID book). They may also need to submit additional documents on your behalf (see question 6).

(7) Applications made on behalf of non-South African Employees (information for employers)

The below information should be read with the information on how to apply for C19 TERS benefits can be found by referring to question 2.

Applications for C19 TERS benefits made on behalf of non-South African citizen employees may encounter delays, either because of “verif through interaction with the Department of Home Affairs and at time the South African Revenue Service”, or other issues that impact South African and non-South African employees alike.

Employers should consult with the UIF Call Centre (0800 030 007) regarding applications made on behalf of non-South African employees.

When applying for non-South African citizen employees, employers may need to provide additional details for such employees to ease the verification and payment of benefits:

1. Name and Surname

2. ID or Passport or Work Permit number or identification or such method

3. Proof of how the employee was declared or registered with UIF or SARS

4. Attach proof of such declaration and a three months bank statement showing payment of salary to that staff member

Employers should also confirm that the employee is registered on the uFiling online system.

When applying on behalf on an employee, the employer should use the identity number associated with the relevant document that was used: when UIF contributions were made, when they were registered on the uFiling online system, and/or when they were registered with SARS. Normally, this will be the document that provides for the right to work, and it may be a passport number (with the relevant visa or permit therein), an 11 or 15-digit number associated with an asylum seeker permit or visa or formal recognition of refugee status, or a 13-digit refugee ID.

Some non-South Africans may have an asylum seeker permit or visa, refugee status, or refugee ID (click to see examples). In these cases, the employer should use these documents, and should not request a passport from their country of origin. If you are unsure of which document to use, you can contact the UIF Call Centre (0800 030 007), or reach out to the Advocacy Programme of the Scalabrini Centre for advice (info@scalabrini.org.za; 021 465 6433; 078 260 3536 (during the lockdown).

(8) What if I am a non-South Africa citizen employee, and my South African colleagues have been paid but I have not been paid yet?

Applications for C19 TERS benefits made on behalf of non-South African employees may encounter delays, either because of “verif through interaction with the Department of Home Affairs and at time the South African Revenue Service”, or other issues that impact South African and non-South African employees alike, including errors during the application processed. The most important thing is that you confirm with your employer that they have applied on your behalf.

You should ask your employer to confirm, in writing, that they made an application for C19 TERS benefits. This written confirmation should specify exactly which identity number they used in the application, and specify which months they applied for. Your employer should continue to follow-up on the application by contacting the UIF Call Centre (0800 030 007).

(9) What if I did not pay UIF, can I still benefit from C19 TERS?

Following the Amended Directive of 26 May 2020, persons eligible to benefit from C19 TERS include employees contributing to UIF AND employees (as defined by the UI Act) who should have received benefits under the directive but for circumstances beyond their control the employer failed to: register as an employer; register the employee as a contributor; or, make contributions in respect of the employee. If your employer won’t help you, contact the UIF Call Centre (0800 030 007) or go to the nearest Labour Centre for assistance. However, this may only apply to the 27 March to 15 September 2020 time period.

During the new extension period (16 September 2020 to 15 March 2021), a person has to registered as a UIF contributor and meet other relevant criteria in order to be eligible.

(10) What if I believe my employer has engaged in fraudulent activity?

There may be many valid reasons why you have not received your C19 TERS benefits yet. However, if you believe your employer has engaged in fraudulent activity, or if they refuse to

pay your C19 TERS benefits, you should report the employer to the nearest Labour Centre or contact the Fraud Hotline (0800 212 799).

(11) I am recently unemployed or retrenched. Am I eligible for C19 TERS benefits? How do I apply for normal UIF benefits?

C19 TERS benefits are intended to assist employers to pay employees who are currently employed but not working because of the lockdown. This is not the same thing as being unemployed.

If you are a UIF contributor and are unemployed because of termination, dismissal, or insolvency, or if you have reduced income owing to reduced working hours, you may be eligible to apply for normal UIF Benefits – apply online with the UIF Online Filing System. For more info, follow this UIF’s Easy Guide for Electronic Claims, call UIF for assistance (0800 030 007), or read our Explainer on UIF (updated link coming shortly).

If you were employed but not working because of the lockdown, and later you became unemployed (through dismissal, retrenchment, insolvency, etc.), your employer should have applied for C19 TERS benefits on your behalf for the eligible months that you weren’t working during the lockdown (March 2020 to 15 March 2021), and you should apply for normal UIF benefits to cover the period from when you were unemployed.

(12) What if I believe I have been unfairly dismissed or retrenched?

If you believe you have may have been unfairly dismissed or retrenched, you should approach the Commission for Conciliation, Mediation and Arbitration (CCMA). Visit the CCMA’s website for more information. Please note that normally disputes must be raised with the CCMA within 30 days of the date of the dismissal.

Infographic: Overstaying your visa

Our infographic explains the consequences overstaying your visa issued in terms of South Africa’s Immigration Act, and what you can do about it. We also look at the impact of the Covid-19 National Lockdown on this.

Our new infographic, which looks at the consequences of overstaying your visa issued in terms of South Africa’s Immigration Act, was created in response to clients’ needs. People are ‘banned’ from re-entering South Africa if they exit the country with an expired visa. We have created this infographic to better explain the consequences of over-staying a visa in South Africa. It is important to understand the rules around this, and also what actions you can take.

Read our infographic to understand more.

Scalabrini_centre_cape_town_lockdown_information

Information on the Lock-Down: posters in your language

What does the lock-down mean for you? This information is copied directly from the South African government. Please share with friends and family online. Take care, don't panic, and look out for each other.

For reliable information on the Covid-19 virus, visit www.sacoronavirus.co.za. We will be updating our Facebook Page with important information relating to Scalabrini's work and affected communities.

Unemployment Insurance Fund: Explainer

Please note! The information below applies to applications for normal UIF benefits only, and does not apply to the COVID-19 Temporary Employee / Employer Scheme. To make an application for normal UIF benefits during the lockdown, you can apply for UIF benefits by registering and filing online through the UIF online filing system.

What is the Unemployment Insurance Fund (UIF)?

The Unemployment Insurance Fund (‘UIF’) is established by the Unemployment Insurance Act, and provides short-term relief to workers when they become unemployed or are unable to work because of maternity, paternity, or adoption leave, or illness. It also makes provision for the dependents of a deceased worker, or for the loss of income due to reduced working time in certain cases.

Eligible workers in South Africa are required to register with and contribute to UIF on a monthly basis. Contributors to UIF who become unemployed or are unable to work can apply for: unemployment benefits; maternity benefits; paternity benefits; illness benefits; adoption benefits; and, dependant benefits (in the case of death of the contributor).

This explainer provides general information on UIF and accessing its benefits. For further information you can visit the website of the Western Cape Government or the Department of Labour, contact the Client Service Centre of the Unemployment Insurance Fund (toll free, 0800 843 843), or speak to an official of the Department of Labour at your nearest Labour Centre.

Who contributes to UIF, and how much is contributed?

The Unemployment Insurance Act and Unemployment Insurance Contributions Act apply to all employers and workers (including domestic workers), all of whom should contribute to UIF. However, the following workers do not have to make contributions to UIF: workers working less than 24 hours a month for an employer; learners; public servants; foreign nationals working on temporary contract; workers who get a monthly State (old age) pension; or, workers who only earn commission.

The following people must contribute to UIF when formally employed (unless excluded as above):

All persons lawfully employed in South Africa, such as:

  1. South African Citizens with a 13-Digit ID,
  2. Refugees with a Refugee Certificate or Refugee ID issued in terms of the Refugees Act,
  3. Asylum seekers with an Asylum Seeker Permit or Visa issued in terms of the Refugees Act; or
  4. Foreign nationals with valid passport/permit or 13-Digit ID (in the case of permanent residents).

As a worker, 2% of your monthly salary must be contributed to UIF. Your employer must contribute 1% and you must contribute 1%. This should be deducted from your monthly salary, and should be reflected on your pay slip. Every employee has the right to a pay slip and a written contract.

If you are not sure if you or your employer are supposed to pay contributions to UIF, speak to an official of the Department of Labour at the nearest Labour Centre.

Who can apply for benefits from UIF, and under which circumstances?

Any worker who has made contributions to UIF may apply for benefits when they become unemployed or are unable to work because of maternity, adoption leave, or illness. In the case of a deceased worker, the dependents can apply for benefits. The application would then have to be processed by the Department of Labour. In order to be eligible for benefits, you must meet certain criteria or circumstances. These include the following, displayed on this table:

How do I apply for benefits from UIF, and when should I apply?

(Note: To make an application for normal UIF benefits during the lockdown, you can apply for UIF benefits by registering and filing online through the UIF online filing system.)

Normally, applications should be made at your nearest Labour Centre. Go as soon as possible. Timeframes within which applications must be made depend on the type of benefits one is applying for. The Unemployment Insurance Commissioner may accept a late application if good cause is shown. These time-frames include:

To make a claim you will need the following documents:

  1. A valid form of identification, such as: a 13-Digit ID (Citizens or Permanent Residents); a valid passport/permit; a Refugee Certificate or Refugee ID issued in terms of the Refugees Act or an Asylum Seeker Permit or Visa issued in terms of the Refugees Act;
  2. Form UI-2.8 for banking details;
  3. Copies of your last six payslips;
  4. The relevant UI application form for the type of claim (inquire at Labour Centre for relevant form); and
  5. Relevant supporting documentation, i.e. proof of illness, adoption order, birth certificate, death certificate, etc.

Once you have the necessary documentation, you must go to your nearest Labour Centre themselves and hand in the documents. Staff at the Labour Centre should assist you with all the processes and give you more information. Staff at the Labour Centre may ask for further documentation.

If you think you are eligible for benefits from UIF, or if you have any questions regarding the application process, speak to an official of the Department of Labour at your nearest Labour Centre.

What benefits will I receive if I apply for benefits from UIF?

If you are eligible for benefits from UIF, the level of benefits you will receive is dependent on your income and how long you have been a contributor to UIF. This calculation is made by the Department of Labour.

If you have questions regarding the level of benefits you will receive, speak to an official of the Department of Labour at your nearest Labour Centre for assistance. Click here for a list of Labour Centres.

Are refugees and asylum seekers able to contribute to and apply for benefits from UIF?

Yes. Amendments to the Unemployment Insurance Act Regulations came into operation on 14 February 2020, and allow asylum seekers who made contributions to UIF to access benefits from UIF. These Amendments are the result of strategic litigation undertaken by Werksmans Attorneys.

I am having difficulty accessing benefits from UIF. What can I do?

If you are having difficulty accessing benefits from UIF, your first step should be to speak to an official of the Department of Labour at the nearest Labour Centre for assistance or to contact the Client Service Centre of the Unemployment Insurance Fund (toll free, 0800 843 843). Click here for a list of Labour Centres.

If you continue to have difficulty accessing benefits from UIF, keep a detailed record of interactions with the Labour Centre, including when you attended, which documents you submitted or received and copies thereof, and what information was provided for you, including reasons why you have not been assisted. You can use this information to seek advice. You can use this information to contact and seek advice from one of the organisations listed below. Organisations you can contact for help include:

Socio-Economic Rights Institute of South Africa (SERI) Tel: 011 356 5860

ProBono.org Tel: 011 339 6080 (Johannesburg); 031 301 6178 (Durban); 087 806 6070 (Cape Town

The Scalabrini Centre of Cape Town (Cape Town) Tel: 021 465 6433

Lawyers for Human Rights (Nationwide) Tel: 015 534 2203 (Musina); 031 301 0531 (Durban); 012 320 2943 (Pretoria); 011 339 1960 (Johannesburg)

Refugee Rights (Cape Town) Tel:  021 650 3775

Refugee Rights Centre (Port Elizabeth) Tel: 041 504 1310.

This is part of our Teach-Yourself Series. Find more articles & infographics here.

Researched by Ben-Joop Venter and JeanLouise Olivier, with contributions by the Advocacy Team and volunteers.

Covid-19 prevention: posters in your language

Help stop the spread of Covid-19 by using these posters in different languages. Please download and share and post online. Together, we can help stop the spread of Covid-19. For reliable information on the Covid-19 virus, visit www.sacoronavirus.co.za. We will be updating our Facebook Page with important information relating to Scalabrini's work and affected communities.

birth registration south africa

Birth Registration in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on current and planned changes in South African migration law. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

For further information about the issues discussed in the series, contact lotte@scalabrini.org.za or you can visit www.genderjustice.org.za.

This article used several useful resources published by Lawyers for Human Rights, including the online handbook on Preventing Statelessness, and a pamphlet on Childhood Statelessness. You can watch a video about birth registration here.

  1. What is birth registration?

As we will discover in this article, it is set in international law that every child – wherever they are born, and whoever they are born to – must have their birth registered. This means that the birth is officially recorded by a branch of a government or state. In South Africa, children who qualify for citizenship, or children of permanent residents and refugees, are recorded in the National Population Register when their birth is registered. (Children born to South African citizens outside of South Africa are also registered in the National Population Register.) This is a national database of such children born within South Africa.

Normally, this is completed upon a child’s birth, and takes the form of a birth certificate that is usually entered into a form of population register. At a minimum, a birth certificate sets out the child’s legal name, their date of birth and their place of birth. A birth certificate can prevent a child from becoming ‘stateless’ – a situation in which an individual has no recognised nationality at all.

Some parents struggle to have their child’s birth registered. In South Africa, this can cause huge problems, creating barriers to accessing services, basic child and human rights, education and health service. Section 28 of the Constitution of South Africa, which requires that the ‘best interests’ of the child to be the priority in all decisions and matters concerning the child. The South African courts have ruled, many times, that it is in the best interest of the child to have a birth certificate and access to a nationality. However, as we shall see, various regulations and practices in South Africa are resulting in hundreds of children existing without birth certificates in South Africa today.

  1. What does a birth certificate look like in South Africa?

In South Africa, a ‘Notice of Birth’ is issued when a child is born and certain documents (such as a medical witness to the birth) are provided. This is a prerequisite to being issued a birth certificate at the Department of Home Affairs. Recently, however, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly.

Previously, the South African government issued abridged (short) and unabridged (long) birth certificates. An Abridged/short birth certificate reflects only the individual’s date of birth, place of birth, name and identity number, if applicable. An unabridged/long birth certificate (which is the only type that is issued by the South African government since 2013) also provides the mother’s and father’s details – including their names, dates of birth and nationalities. The unabridged birth certificate can prove a claim to a child’s nationality.

As of March 2013, the Department of Home Affairs (the body responsible for issuing birth certificates in South Africa) stopped issuing abridged, or short birth certificates. Only unabridged birth certificates are issued since this date.

Children who are born to two non-South Africans, and who do not qualify for citizenship, are entitled to a birth certificate, as per the Births and Deaths Registration Act (BDRA). However, in these cases, the children are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.

  1. Why us birth registration so important?

In South Africa, a birth certificate is vital to access the following rights:1

  • A right to a name and nationality, as set out at Section 28 of the Constitution. Without a birth certificate there is no way to prove a child’s nationality,
  • A right to basic education, as set out in South Africa’s Bill of Rights. Schools are becoming increasingly strict around enrolling students who cannot provide documentation,
  • A right to healthcare, as set out in South Africa’s Bill of Rights. Healthcare – especially for children over the age of seven, becomes increasingly difficult to access if the child does not have a birth certificate.
  • Access to other services such as child protection mechanisms, and other state services.

Children’s rights are specifically applicable to those persons under the age of eighteen. Without a birth certificate, it is not possible to prove a child’s age (unless an age assessment is completed by a medical practitioner) and therefore children near the age of eighteen might well be treated as adults. This is especially problematic in cases of detention and deportation.

The lack of a birth certificate has negative effects on many areas of a child’s life, aside from those stated above. A person’s fundamental rights to equality, human dignity, freedom and security of person, and fair labor practices1 are all compromised when that individual has no documentary proof of where, when and to whom they were born.

Aside from this, birth registration is now required as a prerequisite to access an ID – it is at birth registration that an ID number is allocated to an individual and he or she is added to the National Population Register. Children who should be issued and ID number – such as those children born to South African citizens – will face barriers to accessing ID documentation later in life, and will struggle to complete

You can watch a video about birth registration here.

NOTE:

  1. These rights pertain to Sections 9, 10, 11, 12 and 23 of the Constitution, accordingly.

 

  1. What does international law say about birth registration?

International law is very clear about a child’s right to birth registration. Here are some of the international laws that speak to this issue – of which South Africa is a signatory, meaning that it must uphold their provisions and not take actions against their goals and principles.

1948 Universal Declaration on Human Rights

This is considered to be the foundation for international human rights law. At Article 15, it states that everyone has the right to nationality, and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

1989 United Nations Convention on the Rights of the Child

Article 7 states that a child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.”

1966 International Covenant on Civil and Political Rights

Article 24(1) states that ‘every child’ has the right to the protection which his status as a minor grant him ‘without any discrimination as to … national or social origin.’

1999 African Charter on the Rights and Welfare of the Child

Article 6 confirms that ‘Every child shall have the right from his birth to a name. Every child shall be registered immediately after birth’ and that ‘Every child has the right to acquire a nationality.’

Lawyers for Human Rights’ book on Preventing Statelessness contains a useful section on International law, should you want to read further.

  

  1. What South African laws exist around birth registration in South Africa?

There are several laws in South Africa which confirm a child’s right to a birth certificate. As we will see in Section 6 of this article, the reality is quite different.

The Constitution of South Africa: The Bill of Rights

A number of the rights in the Bill of Rights apply to both citizens and non-citizens in South Africa. (For example, the right to vote is reserved for South African citizens only.)

Section 28 of the Constitution of South Africa states that ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate.

The Bill of Rights confirms other fundamental rights that can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. For example, the right to equality (section 9), the right to freedom of movement (section 21), and the right to human dignity (section 10) are all affected if a child or an adult has no document to prove their nationality.

The Births and Deaths Registration Act (1992)

The Births and Deaths Registration Act provides the processes for the birth registration of all children born within South Africa – whether they are born to South African or foreign parents. Lawyers for Human Rights explains that, under this Act, “children born in South Africa who do not qualify for citizenship are entitled to a birth certificate under the Births and Deaths Registration Act. However, they are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.”

The Act requires that births should be registered within thirty days of birth. (If this is not completed, the a ‘Late Registration of Birth’ process has to be followed – see question 7).

The Regulations on the Registration of Births and Deaths (2014)

The Regulations of the Births and Deaths Registration Act sets out the rules, forms and procedures around applying for a birth certificate in South Africa. These regulations were amended in 2014, and new draft regulations are being considered in parliament. The Regulations of 2014 confirmed that hand-written birth certificates would no longer be issued, and that biometric details would be recorded to register births.

Some aspects of these Regulations are:

  • Importantly, the Regulations require that both the parents of a child must have a valid passport and permit (visa) or a valid asylum seeker permit or refugee status to register the birth of their child. This has had hugely detrimental effects on children born to one or two non-South African parents, as we see in Section 8 of this article. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court ordered that the Birth and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth ‘where possible’. The Naki judgement also allows single fathers to register births of their children.
  • Processes for the Late Registration of a birth. These are split into two categories: the birth registration of children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. Several documents are required for a Late Registration of birth (see Section 6 of this article).
  • The Regulations also set out the processes to register a child born out of wedlock (for more information on this, see page 76-78 of the preventing statelessness handbook), for children born outside of a hospital or clinic (see page 79 of the preventing statelessness handbook), and the registration of a birth by a single father, among other scenarios.

The Citizenship Act of South Africa (2010)

The Citizenship Act of South Africa does not speak specifically to birth registration, but sets out who is able to gain – or apply for – South African citizenship. Children born to South African citizens are, automatically, South African citizens. As of 2013, the amended Citizenship Act came into force. Section 4 of the amended Citizenship Act now states that children born to non-South African parents can apply for South African citizenship ‘upon becoming a major’ (i.e. turning eighteen years of age) if they have lived in South Africa from their date of birth to the date of turning eighteen and if their birth has been registered – i.e., if they have been issued a birth certificate as per the Births and Deaths Registration Act. This is an example of how vital a birth certificate is to accessing citizenship.

Although this provision exists, it has not yet been applied, as the Department of Home Affairs has indicated that it is not applying it to children born before the amendment of 2010. This was subject to litigation, in which the Supreme Court of South Africa confirmed that it should indeed apply to children born before 2010. This is yet to be applied, and the Legal Resources Centre will provide updates.

 

  1. What is late registration of birth?

In South Africa, any birth that is not registered after thirty days is considered a Late Registration of Birth. As stated in section 2 of this article, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly. However, this is not always accessible to parents – especially those parents who are not South African. A Notice of Birth is required to gain a birth certificate, and to be issued a Notice of Birth, valid documentation must be held by both parents. This has resulted in many children not being issued a birth certificate in South Africa.

There are two categories of Late Registration of Birth applications: children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. The requirements for a Late Registration of Birth differ depending on whether a child was born to South African parents, permanent residents, refugees, or other non-nationals.

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

The minimum requirements for a Late Registration of birth are listed below:

  • A proof of birth, completed by a medical practitioner who attended to the birth of examined the mother after birth
  • An affidavit by a South African citizen who witnessed the birth
  • Biometrics of the child
  • Fingerprints of the parents or adoptive parents
  • Certified copies of the parents’ ID documents (and, in cases where one or both parents are non-South African, certified copies of valid passports, visas, or asylum documents are required)
  • Where applicable, a marriage certificate of the parents
  • Where applicable, a death certificate of any deceased parent
  • Where applicable, a certified copy of the ID document of the next-of-kin
  • Proof of payment of a fee.

In some cases, a panel will interview and discuss certain late registration of birth applications. In some cases, where one parent is a non-national and unmarried, Home Affairs can request a DNA test.

(Although, the Naki and Others v Director General: Department of Home Affairs and Another Naki judgement, as mentioned in Question 5, also found that, even if you cannot provide all these documents, your application for Late Registration for Birth, your application must still be accepted and considered.)

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

  

  1. What are the barriers to registering births of non-national children in South Africa? 

There are several barriers to children being issued birth certificates in South Africa – and due to the regulations that exist, a growing number of children are living without any proof of birth. This is not in the best interests of the child, nor is it in the interests of the South African state, in that any state wishes to document the number of people born within its borders. It is impossible to quantify how many children do not have birth certificates in South Africa. A study found that of 108 foreign children in care, half did not have birth certificates.

This situation has prompted criticism from UN Committee on the Rights of the Child, the African committee of experts on the right of the child and the UN Human Rights council on South Africa’s violations of international law on the child’s right to birth registration and a legal identity.

Both parents need valid documentation to register their baby

In South Africa, the Regulations on the Registration of Births and Deaths require both parents to hold a valid passport and permit (visa) or a valid asylum or refugee document. This means that the birth registration of children born to one or both parents who do not hold current legal stay in South Africa is impossible. This also affects South Africans who do not hold an ID book or have blocked IDs.

Whilst it might seem like a logical requirement of foreigners in South Africa, ensuring valid documentation in South Africa can be complex and, sometimes, impossible. For example, the ongoing closure of the Cape Town Refugee Reception Office has forced asylum seekers into travelling long distances to remain documented. Long queues, denied access and corruption exasperate the difficulties around extending permits. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court found the requirement of parents to show valid documentation in order to register their births to be unconstitutional. The court ordered that these Regulations be read to mean that parents must show valid documentation ‘where possible’. The court confirmed that that a child’s right to birth registration should not be dependent on the documents that their parents do or do not have.

Thirty days requirement

In South Africa, births must be registered within thirty days. Late registration of birth can be complex, especially for those without easy access to offices or the hospital where the birth took place. As explained in Section 6 of this article, several documents are required for a Late Registration of Birth. Those living in rural areas with little or no income may struggle to gather such documentation and travel to government offices and hospitals.

Recent developments

In 2018, the Department of Home Affairs published its proposed new regulations to the Births and Deaths Registration Act. Instead of removing “requirements that may have punitive or discriminatory impacts on certain groups of children”, as recommended by the UN Committee on the Rights of the Child and as ordered by the court in the Naki case, the proposed regulations lower the standard further by removing birth registration for foreign children entirely.

The Regulations are calling for the discontinuation of the issuing of birth certificates to foreign children. The new regulations propose that foreign children be issued with a mere “confirmation of birth” which is “not a birth certificate”, according to the new form. This puts into question those children’s access to their most basic rights – and the ability to claim citizenship.

In our submissions to the South African government and press statements on the issue, we urged the Department of Home Affairs not to pursue this amendment. This issue was covered in the South African media. We are awaiting the finalization of these Regulations, and hope to see our submissions implemented.

 

  1. I have more questions. Who can I ask?

There are several organisations working on this issue. Here are the contact details of three organisations: