How can a mother with an
expired visa register her children?
Groundup –
06 November 2021
The
following question is from a reader who needs information about registration papers for children
born in South Africa to a Zimbabwean mom whose visa has expired.
How can a
mother with an expired visa register her children?
The short
answer
There are
a few possible options, but the best route may be to get legal help.
The whole
question
My
girlfriend is from Zimbabwe. Her visa has expired but her passport is still
valid. She and her children (aged three and five) have been with me at my home
for the last two years. Both children were born in South Africa but, for
whatever reason, they were never issued with any registration papers - only the
hospital card. We urgently need birth certificates or ID numbers for the
children as the five-year-old needs to enrol in school. Currently they are both
attending a registered creche that does not require any documents.
I have
been in South Africa since 1984 and am a permanent resident with an ID number.
I am prepared, with pleasure, to have the children under my name as we are
living as a loving family. My girlfriend is worried about making noise at Home
Affairs because of her visa status, even though we know that the Constitution
guarantees an identification to every child born here regardless of the
parents' race, nationality or status.
Despite
numerous attempts with Home Affairs, we have been unsuccessful. After queuing
for four hours every time, we get mixed messages about what we need to do. The
bribing option has been offered to us but we are law-abiding people and want to
do this legally.
The long
answer
Firstly,
as the children were not registered within thirty days of birth, as is required
by law, you would need to apply for late registration of birth. If it is after
1 year but before 15 years, you would need to give Home Affairs the following
documents:
- A completed Form B1-24/1,
together with written reasons why the birth wasn’t notified, and as many
as possible of the following documents to confirm the child’s identity as
are relevant, given their age:
1. A certificate from the
hospital or maternity home where the child was born. The certificate must be
signed by the person in charge, and contain the institution's official stamp;
2. Official confirmation of the
child's personal details, extracted from the school register of the first
school attended by the child. The confirmation must be on the school's official
letterhead, be signed by the principal, and contain the school's official
stamp. (This could refer also to the creche they presently attend.);
3. The child's baptismal
certificate – if relevant;
4. Sworn affidavits by the
parents;
5. A clinic card.
There was
a great constitutional victory for unmarried fathers on 22 September 2021, when
the Constitutional Court declared Section 10 of the Births and Death
Registration Act (BDRA) unconstitutional and ordered it to be deleted entirely
from the BDRA. It was found to be unconstitutional because it did not allow
unmarried fathers to register their children’s births in their name when the
mother could not do so or was unwilling to do so, or when the mother could not
be present. The judgment specifically mentioned the problem of undocumented
mothers “…who live and give birth to children in South Africa and are unable to
register the births of these children. Third, another difficulty arises as a
result of the requirement that parents, who are non-South African citizens,
must produce a certified copy of a valid passport or visa.”
All of
the above left children without birth certificates.
The
Centre for Child Law, which took the case to the Constitutional Court and was
represented by Lawyers for Human Rights, said that children are vulnerable
members of society who were even more vulnerable when they don't have valid
birth certificates because, not only could they be excluded from education,
social assistance and health care but, crucially, could be excluded from access
to their nationality and become stateless.
As you
rightly said in your email, the Constitution guarantees the right of every
child born here to an identity, and the 2021 court judgment means that this
right must now be realised. The Constitutional Court found that it was not
justified to distinguish between children born to married parents and children
born to unmarried parents when it came to deciding what surname could be given
to a child. Section 10 penalised children born to unmarried parents and was
thus unconstitutional. Unmarried fathers will now be able to register their
children under their surname, in the absence of the mother or without her
consent.
But
although this was a crucial victory for children and unmarried fathers, it will
not solve your problem with Home Affairs as you are not the children’s
biological father.
Given that
the visa of your Zimbabwean girlfriend and mother of the children has expired,
she obviously does not wish to expose herself to possible deportation by going
to Home Affairs to do the late registration of birth for the children. It would
seem that your choices are either to sort out her visa with Home Affairs, which
may well be a difficult and lengthy process involving your girlfriend returning
to Zimbabwe and re-applying for a visa from there, or to legalise your own
relationship with the children. This could be by adopting them.
Adoption
of South African children is done in terms of the Children’s Act, 2005 (Act 38
of 2005) and is administered by the Department of Social Development, while the
notice of adoption must be recorded by Home Affairs in the birth registration
of the children.
Under the
Children’s Act, written consent to the adoption must be given by the parent or
parents or legal guardian of the children. This consent (Form 61) must be
signed in the presence of the presiding officer of the Children’s Court who
will then attest to the signature. This written consent can be withdrawn by the
person giving it within 60 days if they change their mind.
Alternately,
if you were to marry your girlfriend to legalise your relationship with the
children, the following documents would be required by Home Affairs to marry
you, according to their website:
"On
the day of the marriage a couple must present the following documents to the
person officiating at the wedding:
- Identity documents (for each
person getting married);
- If a foreign national is
marrying a South African citizen, they should both present their valid
passports as well as a completed BI-31 Form (Declaration for the Purpose
of Marriage, Letter of no impediment);
- If any of the persons
getting married are divorced, then the final decree of divorce should be
furnished;
- If any of the persons
getting married are widowed, the deceased spouse’s death certificate must
be submitted.
www.samigration.com
