The Scalabrini Centre of Cape Town (SCCT) welcomes the recent judgment by the Eastern Cape High Court in the case in J and Another v Minister of Home Affairs and Another (1986/2021) [2023] handed down on 10 January 2023. The SCCT advocacy programme includes a walk-in paralegal and children’s rights advice office, regularly providing assistance to foreign parents in registering the birth of their children as well as advising caregivers, social workers or any interested party, on the birth registration legal framework and documentation considerations. The J and Another judgment offers assistance and clarity to one aspect of the birth registration process.

In the J and Another case Regulation 12(2)(c) of the Birth and Death Registration Act was declared unconstitutional and invalid in so far as it discriminates against children from including the details of unmarried fathers on their birth certificate in instances where the child’s father “may not be in South Africa or may not be in South Africa legally.”2

The court was forthright in championing the rights of the child and playing the pivotal role of the court as upper guardian of all minor children. The court held that not entering a child’s fathers “details in the child’s birth certificate… only prejudices the child and does so unjustifiably and irrationally, without serving any useful purpose… not intervening… would amount to the betrayal of the children’s rights which are constitutionally guaranteed… children’s rights are always protected and treated as paramount.” 3

Foreign nationals and social workers face challenges in registering the births of foreign children, especially where the parents’ documentation is expired or non-existent. Birth registration is vital and is key to accessing many services and rights and in avoiding childhood statelessness– a phenomenon whereby a child is not recognised as a citizen by any country. Birth registration is also linked to a child’s cultural identity and sense of belonging.

According to the South African Constitution, every child has the right to a name and nationality. This right is afforded to children by the means of the birth registration process. The South African Constitution and the Children’s Act 38 of 2005 confirm that children’s rights should apply to all children within South Africa’s borders. Birth registration and the inclusion of parents’ names on birth certificates is also an aspect of the Constitutional Right to Human Dignity and as the court points out “the rights of the child to dignity was imperilled by the Regulation…”4

Even though birth registration seems like a straight -forward process and accessible to all children, this is a right that is often violated especially when it comes to foreign children. The recent Court judgement therefore clearly expresses that the child’s right supersedes the status of their parent’s documentation when it comes to birth registration. The judgement ensures that children’s rights are respected, protected, promoted and fulfilled as expressed in accordance with the Children’s Act, the Constitution and International Law. The judgement also certifies that the issuing of a child’s unabridged birth certificate with parent’s details cannot be hindered by the fact that one of the parents is not legally in the country.

Although this is only one of a multitude of challenges relating to birth registration of children born to South African citizens as well as migrants, this judgement should be seen as a step in the direction of realising children’s rights, their dignity and their need to belong.