The Department of Home Affairs is probing allegations that mothers are selling their children's original birth certificates to foreigners after several instances came to lights where 18-year olds tried to apply for ID documents and couldn't produce their original birth certificates.
The first cases came to light in Cape Town when the manager for Home Affairs in Mitchells Plain, Shereen Meyer, mentioned it in a community meeting attended by stakeholders and residents.

Meyer, confirmed to Weekend Argus that an internal investigation was underway after the matter came to the department’s attention when several learners applying for their identity documents (IDs) in matric were unable to produce birth certificates.

“Our citizenship is not to be sold,” said Meyer firmly during the meeting, warning of the seriousness of such offences.

The Department of Home Affairs since confirmed it is investigating the claims. Siyabulela Qoza, spokesperson for the department, said they were aware of three such cases and were probing whether more instances may have occurred. He also confirmed that, from what they have seen, the incidents do not appear to be stemming from the office- referencing that there is no involvement of employees.

“We found that the mothers are selling their kids birth certificates without the knowledge of Home Affairs, especially when they come for replacements - and they get questioned.

"We do not feel comfortable that this is happening and will launch a national investigation, based on what we are able to find we will determine what will need to happen.”

South Africans have been the victims of identity fraud since the dawn of democracy when illegal immigrants tried to obtain South African ID's, birth cerficates, marriage certificates and other documents in a bid to stay in the country legally. This sometimes happened with the help of corrupt Home Affairs officials. There were instances where women were duped into marriages or discovered that they were married when their ID's were stolen or cloned. This is not only a national problem, but an international problem as was reported before when the The United States Federal Trade Commission (FTC) warned that identity fraud and theft had become the No 1 white collar crime in America.

Qoza also reassured that there are no instances where two people share one identity document.
The alleged selling of children's birth certificates has drawn fierce condemnation from public officials, including Mitchells Plain constituency head Ricardo Mackenzie, who labelled the claims “disgusting.”

“It is disgusting that mommies are doing this. What makes it even more sad, because now the children have to suffer,” he said. Mackenzie added that he would be writing to the Minister of Home Affairs to demand urgent intervention and explore steps to address the issue and prevent future occurrences.
The Western Cape Education Department (WCED) has also responded to the revelations. While its Metro South District office has not received official reports regarding such cases, WCED spokesperson Bronagh Hammond acknowledged that delays in the processing of IDs and other documentation remained a challenge for many families.

“The identity number of a learner is a compulsory field as per the National Examination System,” Hammond said. “Learners are encouraged to apply for their Identity Documents (IDs) in Grade 10. In the interim, the birth certificate number must be used.”She added that schools are urged to guide parents on how to apply for IDs through the DHA.
In instances where learners cannot obtain an ID in time for their final exams, schools can support by providing temporary photo identification and registering learners using their date of birth, along with a unique examination number.
The investigation is expected to cast a wider net in the coming weeks, as the DHA probes whether this alleged practice extends beyond the three confirmed cases.

In the case of Maneli v Maneli handed down on 19 April 2010 the South Gauteng High Court ruled that children adopted through Xhosa customary law are entitled to maintenance from their adoptive parents after a divorce.

Judge Ratha Mokgoatlheng made the order after a woman approached the court to force her former husband to pay maintenance for their 12-year-old girl.

The parties decided to adopt in terms of Xhosa customary law an eight months old female minor child whose biological parents had died. The minor child was lawfully adopted by the parties in terms of Xhosa customary law subsequent to the performance of Xhosa traditional rites and rituals

The cardinal issue was whether the respondent who had not lawfully adopted the minor child in terms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005 was legally obliged to pay maintenance for the minor child.

The advocate for the father tried to argue that the court could not issue any maintenance order against his client, because he father was not the biological parent and had never legally adopted the minor child.

The court turned to various sections of the Constitution:

Section 28(2) of the Constitution provides: “A child’s best interests are of paramount importance in every matter concerning the child”.

Section 211 (3) provides: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”

Section 30 of provides: “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

Section 39(1): “When interpreting the Bill of Rights, a court, tribunal or forum-

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

Section 39(2) provides: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.

The court found that The Bill of Rights does not eschew the existence of Xhosa customary law of adoption. In fact the Xhosa customary law of adoption promotes the values that underlie an open and democratic society based on human dignity, equality and freedom, nor is it anathema to public policy or contra bonos mores.

Under the common law, a judicial act is required in order to effect an adoption. Xhosa customary law of adoption is not in conflict with The Bill of Rights or section 18(1)(a) Child Care Act 74 of 1983 and sections 23 and 25 of the Children’s Act No 38 of 20005, decree that adoption or guardianship must be effected by an order of the Children’s Court.

Section 9 of the Children’s Act No 38 of 2005 provides: “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest are of paramount, must be applied.”

The development of customary law in this matter is consonant with promoting the best interest of the minor child as envisaged in Section 28 (2) of the Constitution.

The recognition of the duty to maintain a minor child in terms of customary law and the civil law is reconcilable with the common law and a Bill of Rights. The logical extension and development of the common law to accommodate customary law adoption is not inconsistent with the prescripts of The Constitution.

In terms of Xhosa customary law the respondent and applicant both have a duty to maintain and support the minor child. The parties cannot terminate or abandon their parent/child relationship in respect of the adopted minor child. The legal duty to maintain the minor child under customary law is legally enforceable. There is no reason why such legal duty having regard tosection 39(2) of the Constitution Act should not be enforceable against the respondent under the common law or customary law.

The court thus ordered The Director General of the Department of Home Affairs in terms of section 2 of The Births and Deaths Registration Act 51 of 1992 to register the minor child as the adopted child of the adoptive parents and ordered the Magistrate of the Westonaria Maintenance Court to determine the amount of maintenance to be contributed by the father to the mother towards the maintenance of the minor child .

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If I want to adopt an abandoned baby what is the process .
The Adoption Order finally arrived, and what is the Department of Home Affairs process
DHA Office: Not all offices do this, so before anybody goes to register the birth / do the name change, they need to be sure that that particular office can do it. It’s the office that does Birth Registrations.

Application Forms: complete the following five forms.
1. Application for Noting of an Adoption – form DHA-1773
2. Notice of Birth – form DHA-24 – This is for the original birth of the adopted baby
3. Notice of Birth – form DHA-24 – This is for the “new” birth of the “new” baby
4. Application for Alteration of Surname of Minor – form DHA-193
5. Application for Alteration of Forenames – form DHA-85

Required documentation: You must have the following;
1. The original Adoption Order
2. The Birth Certificate of the baby
3. The Cover Letter accompanying the Adoption Order – I assume that this is not a requirement, but I had mine present
4. Proof of valid RSA Identification for parent / s
Baby present: I had my baby present for his registration. I was never asked to show him, but I assume that it is safer to have the child present.

Circumstances that dictated my forms: I adopted an abandoned baby, I am the only parent adopting him i.e. if there are two parents I assume both need to be present too, I wanted to change his surname, as well as his name i.e. there are separate forms for changing name and changing surname.
Costs:
• Registration of New Birth i.e. Application for Birth Certificate – R70
• Change of Name – R70
• Change of Surname – R70. This fee I did not need to pay as my Adoption Order states that I may now change his surname.

Duration: Prepare to spend the entire day at Home Affairs.
Prepare now to wait for 12 months and longer for the Birth Certificate to finally arrive.

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Introduction to Legal Principles
The Immigration Act of 2002 and its amendments govern the entry of foreigners into South Africa. This framework ensures that only eligible individuals are allowed to enter the country, emphasizing national sovereignty and security. The Act distinguishes between permanent residence permits and temporary residence permits, each with specific requirements and conditions.

Types of Visas for Entry into South Africa
South Africa offers a variety of visas to accommodate different purposes and durations of stay. These include:
Permanent Residence Permits
• Eligibility: Issued to individuals who are not prohibited or undesirable, based on criteria such as good character and economic contribution.
• Application Process: Involves submitting documents like police clearance certificates and proof of financial support.
• Types of Eligibility: Includes being a spouse of a South African citizen, having a work permit for five years, or being a child of a South African citizen.

Temporary Residence Permits
• Visitor’s Visa: For tourism or short-term visits, typically up to three months.
• Diplomatic Visa: For ambassadors and consular officers.
• Study Visa: For foreigners studying in South Africa for more than three months.
• Treaty Visa: For activities under international agreements.
• Business Visa: For business investment or establishment.
• Crew Visa: For crew members of ships.
• Medical Treatment Visa: For extended medical treatment.
• Relatives Visa: For immediate family members of South African citizens or residents.
• Work Visa: Requires proof that no South African can fill the position.
• Critical Skills Work Visa (CSWV): For individuals with scarce skills.
• General Work Permit: Tied to a specific employment contract.
• Corporate Permit: Allows employers to hire foreign workers.
• Retired Person’s Visa: For retirees with sufficient financial resources.
• Exchange Permit: For cultural, economic, or social exchange programs.
• Exemption Permits: Special permits for nationals of certain countries like Zimbabwe and Lesotho.

Immigration Case Law
Recent judicial decisions underscore a shift towards a more humane and family-centred approach in South African immigration law. They recognize the importance of family unity and the well-being of children, ensuring that immigration policies do not unjustly separate families or undermine the rights of individuals to cohabit and support their loved ones.

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A client asked how she goes about adopting her friend’s child, soon to be born. The friend wishes to give up her baby for adoption.

The biological parents would need to receive counselling from an accredited adoption social worker to look at all the options available to them when planning the future for their unborn child.

Should they decide on adoption, they will be assisted to sign consent for the baby’s adoption, in a Children’s Court.
The biological parents would have 60 days after signing the adoption consent to change their minds about the adoption.
Its best that during this period, the baby is placed in a temporary safe care facility.

As a prospective adoptive parent, you would need to go through a screening process with an accredited adoption agency or with an accredited adoption social worker in private practice which involves attending an orientation meeting, interviews with a social worker, a full medical with a doctor on our panel, a psychological assessment, a marriage assessment (if married or in a committed relationship), a home visit, police clearance and clearance from the Child Protection Register. You would also be required to attend a full day’s training and preparation group.

The screening can take between 5-6 months. There is a charge for all professional services and you would be responsible for paying the doctor and psychologist directly.

The baby would remain in temporary safe care until the prospective adopters have completed the screening process and the baby has become adoptable.

How can we help you , please email us to info@samigration.com or whatsapp message me on: +27 82 373 8415, where are you now? check our website : www.samigration.com