The Constitution of South Africa provides that every child born in the country has the right to a name and a nationality at birth. These rights can only be realised through the recording of a child’s name and nationality in the civil registry through the Department of Home Affairs (DHA) immediately after birth, the issuing of a birth certificate, and the certainty of its re-issuing in the case that it is lost. According to UNICEF, birth registration is “the continuous, permanent, and universal recording, within the civil registry, of the occurrence and characteristics of births in accordance with the legal requirements of a country”. Birth registration essentially establishes the existence of a person under the law, and it lays the foundation for the protection and fulfilment of all the other rights (civil, political, economic, social, and cultural rights). Considering the importance of birth registration to living a life of dignity, it is unfortunate that there is a perpetual churning out of laws and practices that deprive children of their foremost right. This brief piece will highlight the challenges that arise when children born in South Africa are issued handwritten birth-certificates by DHA.
The requirements and procedures to access birth certificates are governed by the Births and Deaths Registration Act 51 of 1992 and its accompanying regulations. Under this Act, all children born in South Africa are entitled to a birth certificate. Before 1 March 2013, the DHA issued abridged handwritten birth certificates without an ID number to children born to parents not in the National Population Register (NPA). Important to note is that only citizens and permanent residents are included in the NPA, which leaves out migrants, asylum seekers and refugees. These handwritten birth certificates create serious problems with far reaching consequences with regards to accessing other rights such as, the right to education, healthcare, and social assistance (for example, Child Support Grant and Disability Grant).
South African law does not grant citizenship to children solely based on birth in the country, and as a result non-citizens have to return to their countries, or visit their embassies with the birth certificate from South Africa to claim citizenship for their children. For refugees and asylum seekers this process is not possible, since they have lost the protection of their countries, and any return would lead to a loss of the surrogate protection offered by South Africa in a process called re-availment. Some countries from which foreign nationals hail from are not willing to accept the handwritten birth certificates in order to confer citizenship. They argue that the birth certificate can be easily forged. As a result children are left in a situation where they are not recognised as nationals by their parents country, and by South Africa their country of birth. This leads to statelessness. Statelessness is when a ‘person is not considered as a national by any state under the operation of its law’.
Parents that report their child’s birth certificate lost, regardless of the circumstances surrounding the incident, struggle to get a replacement, and this is partly because of the lack of digitalisation of DHA systems. In an interview with Lester Kiewit, Dr Aaron Motsoaledi highlighted that it can take more than months from time of request for a document archived at DHA to be located. With under-staffing reported at DHA it is not surprising that parents that lose their children's birth certificates are having a hard time getting replacements. When a replacement is not issued, it is almost as if the birth of a child was never recorded in the first place. When one considers the prevalence of crime in the country, xenophobia attacks, accidents, shack fires, and other cicrumstances that lead to a loss of personal property, it is easy to see that children's birth certificates can be lost easily and in great numbers. The fact that DHA refuses, or rather is incapictated to re-issue these birth certificates is concerning, and it should not be taken lightly.
The problems of a child not having a birth certificate are devastating in any part of the world, more so in South Africa where access to healthcare, education, and social grants is hinged upon one’s legal documentation (birth certificates, national ID’s, asylum and refugee permits, and immigration visas). While the Constitution is generous in that every child has a legal right to access basic services under the provisions of Section 28, hospital and school policies are in some instances not consistent with the highest law of the land. Making matters worse is that some teachers, medical staff, and other frontline workers delivering public services (street level bureaucrats) act as gatekeepers, assuming the task of rationing scarce government resources in a manner that discriminates against those without documents. Among those affected are asylum seekers and refugees that are recognised universally as vulnerable population groups that must be prioritised especially when resources are limited. Alas, xenophobia has become institutionalised.
In the end, the excluded are not only children of foreign nationals, but also children of citizens that find themselves in precarious circumstances because of the inefficiencies and deficiencies of the DHA’s systems. Challenges that have been highlighted in this piece such as statelessness and discrimination in accessing social and economic rights that result from the handwritten birth certificates are of a great magnitude such that only government action is sufficient to resolve them. These challenges have not escaped the eye of the highest offices in the country. The President reported in his State of the Nation Address (SONA) 2022 that the government would recruit 10 000 unemployed youth to assist with capturing records into the DHA digital system, however this has not yet materialised. The Minister of DHA also mentioned that 25% percent of the DHA’s budget would be directed towards this important digitisation project which is an urgent need for children and the country pursuant of its international obligations arising from conventions it is party to (for example, the African Charter on the Rights and Welfare of the Child, and the United Nations Convention on the Rights of the Child).
Decisive action by the government will ensure that birth certificates for every child born in South Africa are digitally captured going forward, and that handwritten birth certificates issued prior to 1 March 2013 are also digitised. The South African government has bravely waged a battle against the inequalities created by the discriminatory policies and systems of apartheid, no doubt about that, but I submit that its current birth registration laws, practices, and outdated systems are creating inequalities that will affect generations to come. Fortunately, there is room to make things right.
UNICEF: “Good Practices in Integrating Birth Registration into Health Systems (2000-2009).” 2010.
South Africa: Act No. 51 of 1992, Births and Deaths Registration Act [South Africa], 6 May 1992, available at: https://www.refworld.org/docid/4c5bc39b2.html [accessed 25 May 2022]
Paula Proudlock ‘South Africa’s progress in realising children’s rights: A law review (2014).
Convention Relating to the Status of Stateless Persons. Adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A(XVII) of 26 April 1954. Entry into force 6 June 1960, in accordance with article 39.
Parliamentary Monitoring Group ‘DHA on strategies to resolve long queues at Home Affairs offices; with Deputy Minister’ (2014).
Constitution of the Republic of South Africa [South Africa], 10 December 1996, available at: https://www.refworld.org/docid/3ae6b5de4.html [accessed 25 May 2022]
Organisation of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990), available at: https://www.refworld.org/docid/3ae6b38c18.html [accessed 25 May 2022]
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 25 May 2022]