Every child has the right to a name and a nationality. This right is guaranteed not only by the Constitution, but also by international law, and is accepted for children who are independent of their parents.
In order to give effect to this fundamental right, the mandate that each child’s birth must be registered in the department of housing affairs (DHA), creating a record of the child through the issuance of a birth certificate.
The Regulation on Registration of Births and Deaths sets out the minimum requirements for parents or guardians to register the birth of a child, including proof of birth; child’s biometrics in the form of palm, foot or fingerprint and a certified copy of the parent’s identity document or valid passport and visa or permit, among others.
Birth registration serves a practical and important purpose in accessing education, health and social services. Later in life, the birth certificate allows us to apply for an identity document, which is linked to the right to vote and work.
In the absence of a birth certificate, many of the constitutionally guaranteed rights of children are illusory. Without a birth certificate, children are undocumented and legally not “in” the country – invisible.
Over the past decade, the Legal Resource Center (LRC) has been inundated with requests from parents trying to register the birth of their children without success.
One of our clients, Anathi*, who we know best, was born in the Eastern Cape. While her parents did not register the birth, Anathi had a copy of her mother’s old South African identity document and clinic card. Anathi’s mother died when she was seven years old and she never knew her father.
After her mother died, Anathi was placed in an orphanage in another province where social workers tried to register the birth several times without success. Each time, DHA officials ask for more or different documentation – the mother’s death certificate, the 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 of the area. he was born.
When she turned 18, Anathi tried to register her birth again, this time by herself. He went to the East Cape and got a letter from the chief. At home, Anathi is confident that she will be able to register the birth.
But he was rejected. “We don’t deal with people coming from other provinces,” he said. Anathi lost. He could no longer travel to the East Cape.
Anathi is 23 years old and still has no birth certificate. While she has two daughters, she has not tried to register one of her children’s births because she has no documents and she knows that the DHA will not help her.
Anathi’s experience illustrates that, even with the help of social workers or legal professionals, the challenge remains that regulations and implementation exclude some children from birth registration, either because DHA fails to implement the regulations or because the regulations do not provide for this. children.
These children are divided into four categories. First, although the regulations allow parents who are citizens, permanent residents or refugees to register the birth of their children, the DHA refuses to register the birth of a child where one of the parents is undocumented or has an expired visa and/or passport. These children were denied birth certificates because the DHA failed to enforce the existing laws that included them.
The second and third categories of children excluded from birth registration are those whose parents are asylum seekers with expired permits or undocumented migrants and/or children whose parents are asylum seekers or undocumented people trying to register their children’s births after 30 days. The regulation is silent on the issue of birth certificates for these children.
The fourth and final group excluded from the regulation are individuals who were abandoned or orphaned as children – whether with South African parents or non-nationals – and whose births cannot be registered because they do not have the necessary documentation to determine their descent.
Nor does the regulation provide for self-registration of abandoned children who are now adults. This exclusion of adults, in particular, provides a cycle of exclusion – they also cannot register the birth of their child without registering their own birth.
On 15 October 2022, the LRC launched an application in the Cape Town high court on behalf of 17 parents representing 21 children who fell into one or more of the four categories above and were denied birth certificates. The application was addressed to the director general of the Department of the Interior and the Minister of the Interior, who opposed the application.
The court was asked to declare the Regulation on Registration of Births and Deaths as unconstitutional and invalid because its implementation or wording excludes the four categories of children mentioned above from birth registration.
The court was further asked to direct that the regulations be amended to ensure access to birth registration for all children, regardless of the status of their parents.
The constitutional and legal flaw in the DHA documentation requirement is that it is unconditional, which serves no legitimate purpose other than to deny the right of child registration. Issuing birth certificates for children whose parents are non-citizens also does not make them citizens or permanent residents of South Africa – the children take on the citizenship of their parents.
While identifying the parents is a legal purpose, it is not necessary to require a legal parent’s document at birth for registration because an expired document still proves the identity and others, such as an affidavit, can serve the same purpose.
Therefore, the regulations should be amended to clarify that, while documentation available from the parents can be produced to help certify the child’s birth, these specific documents are not a prerequisite for registration.
The fact that, in 2020, the department released a draft Identity Management Policy that proposes the use of biometrics for birth registration proves the ability and availability of these alternative means.
Every child has the right to register their birth immediately or immediately after birth. To secure a safe, fair and inclusive birth registration system, the Act and its regulations must be amended to ensure that all children born in South Africa are given a birth certificate, regardless of who their parents are.
* Not his real name
The views expressed are those of the author and do not necessarily reflect official policy or position Mail & Guardians.