The short answer
If his visa expired before lockdown, you may need to get legal assistance.
The whole question
My husband is a Malawian and we got married 2015 in Malawi. We came back to South Africa to register our marriage. I gave birth this year on 4 July. I wanted to get a birth certificate for my baby, but I found out that they can't register my baby because my husband's visa expired. He only had an entry visa. Home Affairs said my husband needs to leave the country and come back. They also can't help my baby at the clinic without a birth certificate. What can I do?
The long answer
There are a number of issues here:
• Also, a foreign national whose visa had expired would have to get a Form 20/Good Cause letter to be allowed to submit an application in South Africa, as would usually be the case.
Home Affairs saying that your baby can’t be registered because your husband’s entry visa has expired:
Although the Births and Deaths Registration Act (BDRA) was amended in 2014 to say that both parents had to have a legally valid passport or permit in order to register a child, this was challenged in 2018 in the Naki versus Director General of Home Affairs court case.
In this case, the Eastern Cape High Court ordered that the BDRA must be read to mean that both parents should show valid documentation to register their child “where possible”. The court found that all children born in South Africa had a right to have their births registered, even if one parent was not legally documented. That 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 not, 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 want to consult the following organisations for advice: