Birth registration: How SA’s legislation harms foreign national children
The Saturday Star | 09 December 2022
Johannesburg - Birth registration is a fundamental human right as it triggers the ability to access other rights. South Africa’s regulatory framework is premised on the fact that one’s residence status determines whether a child’s birth can be registered or not.
The registration of children born to foreign nationals, who are not permanent residents or refugees, is subject to the provision of valid documentation.
Senior Associate in the Pro Bono and Human Rights practice at law firm Cliffe Dekker Hoffmeyr, Elgene Roos, said the consequences of not being documented can be far-reaching and result in a child not being able to access basic services that they are entitled to under the Constitution.
“The current legislative framework does not cater to children born to undocumented foreign nationals or even undocumented South African citizens who do not have IDs as a consequence of the apartheid regime. The child's birth will then go undocumented,” she said.
And while the law does not speak to a situation like this, however, practically the Department of Home Affairs (DHA) will most likely demand that the parents wait for permits to be issued and once they have the permits they can, at a Home Affairs office, register their child's birth. Should the permits be issued after 30 days from when the child was born, the parents will have to apply for late birth registration where a fee is payable. In an instance where one parent is documented, birth registration can still be problematic.
“This is a tricky question because the law and courts say one thing but DHA implements the law in different ways. I refer you to the Centre for Child Law versus Director General of Home Affairs case. This matter came before court where a South African father was unable to register the birth of his child because the mother was undocumented and did not have valid documentation as was required by the Regulations to the Births & Deaths Registration Act. The department refused to register the child's birth because the mother's documents were not in order,” Roos said.
When it comes to children, a mother automatically assumes parental responsibility. Even in terms of the Children's Act, the mother is automatically conferred with parental responsibility, whereas a father's parental responsibility only kicks in once he makes a positive contribution toward the child.
“DHA will be happy to register a child's birth when the mother is present and has valid documentation. However, they will not do the same where it is only the father who seeks to register their child's birth, more especially where the parents are not married,” she said.
Roos said the issue centred on the father's right to register their children and declaring certain sections and regulations of the Births and Deaths Registration Act as unconstitutional and invalid.
The Constitutional Court noted that there were competing and conflicting interpretations of certain provisions of the act, and noted that even where one provision allows an unmarried father to register their child's birth, another provision only allows a father to do so where the mother is present and gives her consent to do so. The Constitutional Court declared the provisions in question unconstitutional and gave DHA 24 months to remedy the defect. As it stands, unmarried fathers are allowed to register their children's birth without the mother present.
“This case was a huge success. However, DHA in recent months has created additional barriers for fathers who seek to register the birth of their children, and that is that they require DNA tests to be done before accepting an application. This is deemed as a barrier because of the high cost of a DNA test that not everyone can afford it, and the delay created by needing these tests performed,” she said.
International instruments like the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child expressly recognise the right of every child to be registered and to acquire a nationality. So does the Constitution.
The law, domestic and international, recognises the impact non-birth registration has on a child. The fact that birth registration in SA is contingent on the parents having valid documentation contravenes international law as birth registration is not seen from the viewpoint that it is actually the right of every child. Therefore, a parent's nationality and/or immigration status should not be relevant when it comes to having the child's birth registered.
“There is this huge misconception that if you are born in South Africa you are automatically a citizen. That’s wrong and it’s not the way our law works. If you are born to foreign nationals, you assume the same nationality as your parents,” Roos said.
Despite promises from DHA to comment, the department did not reply at the time of going to print.