There are several laws in South Africa which confirm a child’s right to a birth certificate. As we will see in Section 6 of this article, the reality is quite different.
The Constitution of South Africa: The Bill of Rights
A number of the rights in the Bill of Rights apply to both citizens and non-citizens in South Africa. (For example, the right to vote is reserved for South African citizens only.)
Section 28 of the Constitution of South Africa states that ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate.
The Bill of Rights confirms other fundamental rights that can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. For example, the right to equality (section 9), the right to freedom of movement (section 21), and the right to human dignity (section 10) are all affected if a child or an adult has no document to prove their nationality.
The Births and Deaths Registration Act (1992)
The Births and Deaths Registration Act provides the processes for the birth registration of all children born within South Africa – whether they are born to South African or foreign parents. Lawyers for Human Rights explains that, under this Act, “children born in South Africa who do not qualify for citizenship are entitled to a birth certificate under the Births and Deaths Registration Act. However, they are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.”
The Act requires that births should be registered within thirty days of birth. (If this is not completed, the a ‘Late Registration of Birth’ process has to be followed – see question 7).
The Regulations on the Registration of Births and Deaths (2014)
The Regulations of the Births and Deaths Registration Act sets out the rules, forms and procedures around applying for a birth certificate in South Africa. These regulations were amended in 2014, and new draft regulations are being considered in parliament. The Regulations of 2014 confirmed that hand-written birth certificates would no longer be issued, and that biometric details would be recorded to register births.
Some aspects of these Regulations are:
- Importantly, the Regulations require that both the parents of a child must have a valid passport and permit (visa) or a valid asylum seeker permit or refugee status to register the birth of their child. This has had hugely detrimental effects on children born to one or two non-South African parents, as we see in Section 8 of this article. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court ordered that the Birth and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth ‘where possible’. The Naki judgement also allows single fathers to register births of their children.
- Processes for the Late Registration of a birth. These are split into two categories: the birth registration of children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. Several documents are required for a Late Registration of birth (see Section 6 of this article).
- The Regulations also set out the processes to register a child born out of wedlock (for more information on this, see page 76-78 of the preventing statelessness handbook), for children born outside of a hospital or clinic (see page 79 of the preventing statelessness handbook), and the registration of a birth by a single father, among other scenarios.
The Citizenship Act of South Africa (2010)
The Citizenship Act of South Africa does not speak specifically to birth registration, but sets out who is able to gain – or apply for – South African citizenship. Children born to South African citizens are, automatically, South African citizens. As of 2013, the amended Citizenship Act came into force. Section 4 of the amended Citizenship Act now states that children born to non-South African parents can apply for South African citizenship ‘upon becoming a major’ (i.e. turning eighteen years of age) if they have lived in South Africa from their date of birth to the date of turning eighteen and if their birth has been registered – i.e., if they have been issued a birth certificate as per the Births and Deaths Registration Act. This is an example of how vital a birth certificate is to accessing citizenship.
Although this provision exists, it has not yet been applied, as the Department of Home Affairs has indicated that it is not applying it to children born before the amendment of 2010. This was subject to litigation, in which the Supreme Court of South Africa confirmed that it should indeed apply to children born before 2010. This is yet to be applied, and the Legal Resources Centre will provide updates.