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 belongs to children regardless of their parents.
To give effect to this fundamental right, the mandates that the birth of each child must be registered with the Department of Internal Affairs (DHA), creating a registry of the child by issuing a birth certificate.
The Regulation on the Registration of Births and Deaths prescribes the minimum requirements for parents or guardians to register the birth of a child, including proof of birth; biometric data of the child in the form of palm, foot or fingerprint and a certified copy of the identity document of the parents or current passport and visa or permit, among others.
Birth registration has an enabling purpose and is essential for accessing education, healthcare and social services. Later in life, birth certificates allow us to request an identity document, which is linked to the right to vote and to work.
In the absence of a birth certificate, many of the constitutionally guaranteed rights of children are illusory. Without a birth certificate, the children are undocumented and do not legally “exist” to the state, they are invisible.
Over the past decade, the Legal Resource Center (LRC) has been inundated with requests from parents who have tried to register their children’s births without success.
One of our clients, Anathi*, to the best of her knowledge, was born in the Eastern Cape. Although her parents did not register her birth, Anathi has a copy of her clinic card and her mother’s old South African ID. 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 another province where a social worker tried to register her birth countless times without success. Each time, a DHA official would ask for more or different documentation: her mother’s death certificate, her mother’s ID, 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 tried again to register her birth, this time on her own. He traveled to the Eastern Cape and obtained the chief’s letter. Back home, Anathi was confident that he would finally be able to register his birth.
But she was rejected. “We do not deal with people who come from other provinces,” they told him. Anathi was defeated. She couldn’t afford to travel to the Eastern Cape again.
Anathi turns 23 and still does not have a birth certificate. Although she has two daughters, she has not attempted to register the birth of any of her children since she is undocumented and she knows that the DHA will not help her.
Anathi’s experience illustrates that, even with the assistance of social workers or legal professionals, the challenge remains that the regulations and their implementation exclude some children from birth registration, either because the DHA failed to implement the regulations or because the regulations do not contemplate them. children.
These children fall into four categories. First, while the regulations allow citizen, permanent resident, or refugee parents to register the birth of their child, the DHA refuses to register the birth of a child when one parent is undocumented or has a visa and/or passport. expired. 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 whose parents are asylum seekers with expired permits or undocumented immigrants and/or children whose parents are asylum seekers or undocumented persons who attempted to register their children’s births after 30 days. The regulations are silent on issuing birth certificates to these children.
The fourth and final group excluded by the regulations are people who were abandoned or orphaned as children, either by South African or non-South African parents, and whose births could not be registered due to a lack of the documentation required to establish parentage.
Nor does the regulation provide for the self-registration of abandoned children who are already 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 filed 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. birth. The application was filed against the director general of the department of the interior and the minister of the interior, who oppose this application.
The court is requested to declare the Regulation on the Registration of Births and Deaths unconstitutional and invalid to the extent that its implementation or wording excludes the four categories of children described above from birth registration.
In addition, the court is being asked to order that the rules be changed to ensure access to birth registration for all children, regardless of the status of their parents.
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 whose parents are not nationals also does not make them citizens or permanent residents of South Africa: the children acquire the nationality of their parents.
While parental identification is a legitimate purpose, it is not necessary to require parental documents to be valid at the time of birth for registration, as an expired document still proves identity and alternative means, such as affidavits, they could serve the same purpose.
Therefore, the regulations should be amended to clarify that while available documentation from the parents may be submitted to help certify the child’s birth, these specific documents are not a necessary prerequisite for registration.
The fact that, in 2020, the department published a draft Identity Management Policy proposing the use of biometric data for birth registration demonstrates the feasibility and availability of these alternative means.
Every child has the right to have their birth registered immediately or as soon as possible after their birth. To ensure 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 receive a birth certificate, regardless of their parents.
*Not his real name
Opinions expressed are those of the author and do not necessarily reflect official policy or the position of the mail and guardian.
