You might need legal assistance
The whole question
My partner was born in South Africa but moved to Portugal when he was a year old. He has a South African passport but not the national ID. I, on the other hand, am a foreigner. We currently reside in Cape Town. We are not married, and I am currently pregnant. Once our child is born, we would like to use my partner's surname and he will legally acknowledge the child. Will we be able to register our baby?
The long answer
If your partner has a valid South African passport, he should be able to apply for and get an ID card from the Department of Home Affairs.
But if he acquired the citizenship of another country, he would automatically lose his South African citizenship unless he applied for and got permission to keep his South African citizenship before acquiring the citizenship of the new country. A South African citizen can hold dual citizenship, but again only if he applied and got permission to keep his South African citizenship first.
In terms of registering the baby’s birth:
All children must be registered within 30 days of their birth under the Births and Deaths Registration Act of 1992. The parent or parents must complete Form B1-24 in black ink at their nearest Home Affairs office and submit it. The parent/s must bring their ID/s, and if they are married, a marriage certificate. If the parents are married, the child is given the father’s surname. If they are not married they can choose either the mother’s or father’s surname. The parents are then given an unabridged birth certificate which contains the child’s legal name, their date of birth and their place of birth and its parents’ names. This is then included in the National Population Register. You need an unabridged birth certificate to travel out of the country with the child.
As Home Affairs would often refuse to register the births of children when one parent was an immigrant, a case was brought to the Eastern Cape High Court in 2018 (Naki versus Director General Home Affairs). The court had to decide whether the Births and Deaths Registration Act (BDRA) allowed the father to register a child in the case of a mother being absent or not having legal permission to be in the country. It decided that the BDRA did not allow a father to register the birth of a child in those circumstances; it was therefore unconstitutional as all children born in South Africa have a right to have their births registered.
The court also found that Regulation 12 (1) of the Births and Deaths Registration Act (BDRA) which provided for an unmarried mother to register a child’s birth prevented an unmarried father from registering the birth of a child, which was also unconstitutional.
So it “read into” the regulations the words “or father” to ensure that either a mother or father could register the birth of their child if they were unmarried.
This court decision means that it’s easier now to register the birth of children where one parent is South African and the other parent is an immigrant, because Home Affairs may not refuse to register a child’s birth on the grounds of the legal status of its parents.
Although the court order was in 2018, Home Affairs often takes a very long time to comply with court orders and you may find some Home Affairs officials still refusing to register births of children in the circumstances described above. If you run into that kind of trouble you may want to consult the following organisations for advice
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