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.

2. 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.

3. 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.

 

4. 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.

  

5. 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.

 

6. 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.

  

7. 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.

 

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

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

• The Scalabrini Centre of Cape Town, info@scalabrini.org.za, tel: 021 465 6433
• Lawyers for Human Rights, Musina: 015 534 2203, Durban: 031 301 0531, Pretoria: 012 3202943, Johannesburg: 011 339 1960.
• Legal Resources Centre, info@lrc.org.za, Johannesburg: 011 836 9831, Cape Town 021 481 3000.