Can I get an ID if I was born in SA to foreign parents but my uncle has a valid South African ID?

SA Migration | 10 Jan 2022

The short answer

Possibly. In terms of the 2018 judgement in the Naki case, Home Affairs should accept and consider your application.

The whole question

Dear Friend

I was born in South Africa, although my parents are foreign. I am currently undocumented and cannot further my studies (I have completed matric). I only have a birth clinic card. My father returned to his country and my mother has disappeared. The only family I have left is my father's younger brother who has a valid South African ID. What can I do to get documented?

The long answer

As you were born in South Africa to foreign parents, you can apply for South African citizenship when you are eighteen, if you have not lived anywhere else but South Africa, and if your birth has been registered under the Births and Deaths Registration Act of 1992. (This is in terms of the amended Citizenship Act.)

But as your birth was not registered under the Births and Deaths Registration Act, you need to apply for a birth certificate in “late registration of birth”. It is a long and difficult process, especially as your parents have left the country, but at least there is your father’s brother who will have to stand in and assist you. 

As you are older than 15 years, you would need to provide the following documents to Home Affairs (DHA). You can get the forms from their offices:

• Application for an ID (Form B1-9);
• Completed Forms DHA-24, DHA-24/A x 2 and DHA-288 for the registration of birth;
• Supporting documentation like proof of birth, clinic card etc, as well as written reasons why the birth was not registered within 30 days of birth;
• Fingerprints of parents or adoptive parents;
• Your biometrics (fingerprints);
• Certified copies of parents’ IDs, or asylum permit etc;
• Certified copy of ID of next of kin (this would have to be your father’s brother).

Even though it probably won’t be possible for you to produce all these documents, and neither of your parents can be there, your application must still be accepted and considered by Home Affairs in terms of the Promotion of Administrative Justice Act of 2000 (PAJA), which gives effect to the constitutional right to administrative action that is lawful, reasonable and procedurally fair.

In the 2008 Naki case in the Eastern Cape High Court, the court ruled that the Births and Deaths Registration Act should be read to mean that both parents’ documents must be presented “where possible” when registering a birth. This is because the court took into consideration the difficulties that an undocumented parent/s would experience in trying to register the birth of their child. 

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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.

www.samigration.com

ANC to push for overhaul of migration laws

EWN | 09 Jan 2023

ANC national executive committee (NEC) member David Mahlobo said this was one of resolutions taken by the party’s peace and stability commission during its 55th national elective conference.

JOHANNESBURG - The African National Congress (ANC) said the country’s migration laws must be overhauled.

ANC national executive committee (NEC) member David Mahlobo said this was one of resolutions taken by the party’s Peace and Stability commission during its 55th national elective conference.

Mahlobo said the ANC does not support xenophobia against foreigners who live in the country.

He said that the legislation needed to be clear on how law enforcement entities deal with asylum seekers, immigrants, and refugees.

“We agreed that laws are being overhauled," said Mahlobo.

"All the migration laws we'll engage with the United Nations so that we can be able to put certain conditions around the ascension that we did make but at the very same time our view remains: Africa remains one. We must integrate."

At the party's recently-held 55th national conference at Nasrec, last month, Deputy Minister of State Security and ANC NEC member, Zizi Kodwa, said that the country's citizenship, refugee and immigration acts all needed to be overhauled and reviewed.

"Without being xenophobic, we need to create domestic stability in the country. I think an uncontrolled migration and everybody else may create social instability in the country as we have seen now."

Home Affairs Minister Aaron Motsoaledi said that the ANC had a policy paper calling for the country's citizenship, refugee and immigration acts to all be reviewed.

"The system that is happening now with our immigration is not sustainable, it can't go on forever."

www.samigration.com

Anomalies in the issuing of permits and visas to foreign nationals: Aaron Motsoaledi

09 January 2023 -  #SABCNews

The Ministerial Committee Reviewing Permits and Visas has found a lot of wrongdoing on the part of the Department of Home Affairs in the issuing of these documents. It has recommended the appointment of a multi-disciplinary task team to conduct a full investigation of fraudulent applications, corrupt activities as well as maladministration that have been picked up. The long-awaited report reviewing the issuing of, among other things, resident permits, visas for critical skills, study, business as well as citizenship by naturalization has finally been tabled in Parliament. Among others, it has found that some officials have flouted rules and regulations for acquiring South African citizenship. Home Affairs Minister, Aaron Motsoaledi joins us now for this discussion.

Watch Video Here: 

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This is how attracting Chinese tourists can help SA industry recover, suggests hospitality expert

News24 – 09 January 2023

China had the world's largest outbound tourism market before the pandemic.

• China is about to open its borders for international travel after imposing strict travel bans when the Covid-19 pandemic started.
• In 2019, the number of outbound Chinese tourists peaked at nearly 155 million, of which just over 93 000 chose SA.
• The national chair of hospitality industry body, Fedhasa, says the Chinese market can help the SA tourism industry recover.

China is about to reopen its borders, and now is the time for South Africa's tourism industry to capture a slice of this lucrative outbound tourist market, says Rosemary Anderson, the national chair of hospitality industry body, Fedhasa.  

The South African tourism industry was hard hit by Covid-19 travel restrictions, says Anderson, and attracting visitors from China could be one way of boosting recovery.

China had the world's largest outbound tourism market before the pandemic.

In 2019, the number of outbound Chinese tourists peaked at nearly 155 million. South Africa only attracted just over 93 000 Chinese travellers. 

"There are hopes that the pent-up demand for travel likely to exist in China could benefit South Africa in 2023. Of course, the opportunity of increasing inbound arrivals from China must be seen within our priority to keep South Africans safe," says Anderson.

"We are confident our government authorities will lead with science to ascertain whether or not it is necessary to introduce screening measures for incoming travellers from China as other countries have done."

Several countries are introducing Covid-19 testing and other measures for travellers from China. This has evoked criticism from the Chinese government as well as some in the travel industry.

The International Air Transport Association (IATA), for example, sees such measures as a "knee-jerk reinstatement of measures that have proven ineffective over the last three years".

"Governments should listen to the advice of experts, including the WHO, that advise against travel restrictions. We have the tools to manage Covid-19 without resorting to ineffective measures that cut off international connectivity, damage economies and destroy jobs," states IATA.

'Massive potential' 

Anderson says there are ways in which SA can make itself a more attractive destination for Chinese tourists.

"South Africa has long sought to attract Chinese travellers, but numbers have remained low. We hope that as part of [the SA government's] efforts to ease visa applications, our government will recognise the massive potential held by the Chinese market in helping our recovery," says Anderson.

Furthermore, she points out that it would be a mistake to assume that the Chinese market is homogenous.

"There isn't such a thing as a 'Chinese tourist'. Like any market, they are diverse in their budgets, ages, interests and travel motivations. Well-heeled Chinese tourists transformed destinations, like Las Vegas and Perth, with their luxury travel spend," says Anderson.

Countries like Australia, the US and Japan - all popular among Chinese travellers - have introduced several initiatives to improve their attractiveness over the years. Some initiatives include employing aligned public and private sector marketing initiatives specifically aimed at the Chinese market. For example, ensuring destination and product information is available on Chinese search engines and marketing on Chinese social media channels, like Weibo and WeChat. 

"We should also have a strong trade focus as much of the international travel booked from China is done through travel agents and tour operators," says Anderson.

Other ways to become more "Chinese tourist-friendly" include offering payment platforms, like WeChat Pay and Alipay, being aware of when Chinese holidays take place, learning key phrases in Mandarin, and training tourist guides to speak Mandarin. One can also offer dining experiences aimed at Chinese tastes.

"It would be useful for establishments and their staff to undergo some form of 'China readiness' training beforehand," suggests Anderson.

Michael Puffet, business development manager of booking platform Profitroom South Africa, says after the pandemic, it seems tourists want to add meaning to their international travels.

"Trying to predict the future is always a tricky business, but barring any more black swan events, we are confident that SA's travel industry will continue to show signs of improved health," says Puffet.

"By using technology [to gather data about] people's desires for more meaningful, flexible or holistic travel experiences, [one] can not only help ensure the sustainability of the travel industry, but the places people travel to as well.

www.samigration.com