There are several barriers to children being issued birth certificates in South Africa – and due to the regulations that exist, a growing number of children are living without any proof of birth. This is not in the best interests of the child, nor is it in the interests of the South African state, in that any state wishes to document the number of people born within its borders. It is impossible to quantify how many children do not have birth certificates in South Africa. A study found that of 108 foreign children in care, half did not have birth certificates.
This situation has prompted criticism from UN Committee on the Rights of the Child, the African committee of experts on the right of the child and the UN Human Rights council on South Africa’s violations of international law on the child’s right to birth registration and a legal identity.
Both parents need valid documentation to register their baby
In South Africa, the Regulations on the Registration of Births and Deaths require both parents to hold a valid passport and permit (visa) or a valid asylum or refugee document. This means that the birth registration of children born to one or both parents who do not hold current legal stay in South Africa is impossible. This also affects South Africans who do not hold an ID book or have blocked IDs.
Whilst it might seem like a logical requirement of foreigners in South Africa, ensuring valid documentation in South Africa can be complex and, sometimes, impossible. For example, the ongoing closure of the Cape Town Refugee Reception Office has forced asylum seekers into travelling long distances to remain documented. Long queues, denied access and corruption exasperate the difficulties around extending permits. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court found the requirement of parents to show valid documentation in order to register their births to be unconstitutional. The court ordered that these Regulations be read to mean that parents must show valid documentation ‘where possible’. The court confirmed that that a child’s right to birth registration should not be dependent on the documents that their parents do or do not have.
Thirty days requirement
In South Africa, births must be registered within thirty days. Late registration of birth can be complex, especially for those without easy access to offices or the hospital where the birth took place. As explained in Section 6 of this article, several documents are required for a Late Registration of Birth. Those living in rural areas with little or no income may struggle to gather such documentation and travel to government offices and hospitals.
In 2018, the Department of Home Affairs published its proposed new regulations to the Births and Deaths Registration Act. Instead of removing “requirements that may have punitive or discriminatory impacts on certain groups of children”, as recommended by the UN Committee on the Rights of the Child and as ordered by the court in the Naki case, the proposed regulations lower the standard further by removing birth registration for foreign children entirely.
The Regulations are calling for the discontinuation of the issuing of birth certificates to foreign children. The new regulations propose that foreign children be issued with a mere “confirmation of birth” which is “not a birth certificate”, according to the new form. This puts into question those children’s access to their most basic rights – and the ability to claim citizenship.
In our submissions to the South African government and press statements on the issue, we urged the Department of Home Affairs not to pursue this amendment. This issue was covered in the South African media. We are awaiting the finalization of these Regulations, and hope to see our submissions implemented.