Can an adult apply for
South African citizenship through their informally adoptive father?
SA Migration | 09 Feb 2022
The short answer
If her de facto father was assumed to be her biological father, the child would qualify for South African citizenship by descent
The whole question
Dear Athalie
What is the legal status of a child who was born in Zimbabwe to a Zimbabwean mother who then married a South African man living in Zimbabwe at the time? The South African husband gave the baby his name and signed her birth certificate. Can the child apply for South African citizenship through her informally adoptive father, and can the father could legally adopt her, given that she is 22 years of age?
The long answer
If the man has acted as the child’s father all her life, married her mother before the child was born, gave the child his name and signed her birth certificate, then why should the authorities suspect that he is not her biological father in the first place? He has been her father in fact, ‘de facto’ as the law puts it, even if he is not her parent biologically.
If her de facto father was assumed to be her biological father, then the child would qualify for South African citizenship by descent, if she was born outside South Africa and one of her parents was a South African citizen at the time of her birth and if her birth was registered.
This is the list of documents required by Home Affairs in South Africa for an application for citizenship by descent:
- Completed BI-24 form to be endorsed by South African parent of child being registered;
- Completed BI-529. Child and South African parent;
- Original or notarized copy of foreign birth certificate;
- Original or notarized copies of South African parents' proof of citizenship, such as a birth certificate, ID book, or valid passport;
- Original or notarized copy of parents' marriage certificate;
- A notarised letter of consent from the child's non-South African parent giving her/his consent for the child's birth to be registered in South Africa;
- Adoption order (for those who are adopted by South African citizens).
If for some reason she does not qualify for citizenship by descent, then she could automatically qualify for South African citizenship if she was adopted by a South African citizen.
In South African law, according to the Children's Act 38 of 2005, a child is considered someone under the age of 18 years and when it comes to the adoption process, anyone older than 18 cannot be adopted in South Africa.
In Zimbabwe, too, the person to be adopted must be under 18 years of age. But unlike in South Africa, Adoption.com states that “A waiver from the Ministry of Public Service, Labour and Social Welfare is required for children over the age of 18.”
So it appears that it is not an open and shut case as in South Africa.
Danai Chirawu of kubatana.net says in a 2021 article that, in Zimbabwe, men cannot individually adopt girls except in “certain proven circumstances” and with permission from Social Welfare (Ministry of Public Service, Labour and Social Welfare). She goes on to say that a foreigner can adopt, “provided that they have been given permission by the Minister of Public Service, Labour and Social Welfare.” She says that the High Court “may endorse foreign adoptions.”
In South Africa, the law says that “an adoption order in relation to an adult may be granted by the Court if there was a significant parent-to-child relationship in existence between the intending adoptive parent or parents and the adult before they attained the age of 18 years.”
That might be a good point for a lawyer to advance when applying for a waiver from the Ministry of Public Service, Labour and Social Welfare.
The following quote from Anne Louw (South Africa) in a 2017 paper for A de facto adoption doctrine for South Africa?, may be helpful too:
“…In the case of Maneli v Maneli, the court held that by agreeing to give the boy his name, the defendant impliedly represented to the boy himself, to the plaintiff and to the world at large that he proposed to stand in relation to the boy as a father to a son. The court argued that during the course of the marriage the defendant discharged the duties of a father in his dealings with the boy – willing to place himself, literally, in loco parentis when the family was still intact.”
“… With reference to the Maneli case, the curator furthermore stated that nothing in the Children’s Act precludes the recognition of de facto adoptions.”
“…It should be evident from the above exposition that South African courts have consistently recognised a de facto adoption for purposes of the recognition of a duty of support between the child and the putative parent. A doctrine of de facto adoption has thus evidently emerged in this context. Equity in this context can be justified by the child’s constitutional rights to parental care and best interests encapsulated in section 28." (of the Constitution)
Perhaps your best bet is to approach a lawyer or an organisation that assists people who cannot afford lawyers.
