This article seeks to address the circumstances of those who, for various reasons, did not have their births registered in the Republic. Not being registered, or rather being undocumented, restricts a person in many ways and could result in the person
being arrested for being unregistered.
The Naki case is one of an unmarried father who would like to register his child’s birth under his name. Sections 9 and 10 of the Births and Deaths Registration Act, as well as practices of the Department of Home Affairs, have prohibited unmarried fathers from registering the births of their children in the absence of the mother, or in a situation where the mother of such child is undocumented or her whereabouts are unknown.
These sections rendered such children stateless because their unmarried fathers were excluded from registering their births. Section 10 required that such registration shall be under the surname of the mother, which does not necessarily consider the best interests of the child as provided for by section 28(2) of the Constitution of South Africa.
The Constitutional Court in the Naki case held that section 10 of the Births and Deaths Registration Act impedes the realisation of the fundamental rights of the children and unmarried fathers and is inconsistent with the Constitution. The interim remedy that the Constitutional Court provided is that section 10 of the Act should read:
Notice of birth of a child born out of wedlock shall be given:
- Under the surname of the mother; or
- Under the surname of the father where the father is a person giving notice of the child’s birth and acknowledges his paternity in writing under oath;
or - At the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child. The case has secured the rights of unmarried fathers, while on the other hand it has secured and protected the interests of children, which remains of paramount importance.
Late birth registration is split into three categories:
• After 30 days but before 1 year
• After 1 year but before 7 years
• After 7 years and above - Registration of birth after 30 days but before 1 year
The following documents need to be submitted to the Department of Home Affairs:
• Notice of birth form.
• If the child was born at a health facility then a parent or guardian must submit the proof of birth form. If the child was born at home then parents must submit a proof of birth affidavit.
• An affidavit giving reasons for late registration of birth.
- Under the surname of the mother; or
- Under the surname of the father where the father is a person giving notice of the child’s birth and acknowledges his paternity in writing under oath;
or - At the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child.
The case has secured the rights of unmarried fathers, while on the other hand it has secured and protected the interests of children, which remains of paramount importance.
Late birth registration is split into three categories:
• After 30 days but before 1 year
• After 1 year but before 7 years
• After 7 years and above
Registration of birth after 30 days but before 1 year
The following documents need to be submitted to the Department of Home Affairs:
• Notice of birth form.
• If the child was born at a health facility then a parent or guardian must submit the proof of birth form. If the child was born at home then parents must submit a proof of birth affidavit.
• An affidavit giving reasons for late registration of birth.
• Biometrics (palm, foot or fingerprint) of the child to be registered.
• Fingerprints of the parent(s).
• Certified copies of the parents’ ID documents (and where one or both parents are not South African, certified copies of valid passports, visas or asylum documents).
• If a parent has died, a death certificate of that deceased parent.
• Proof of payment of an application fee (Department of Home Affairs determines the amount from time to time; one needs to enquire with them about the current application fee).
In certain situations, the Department of Home Affairs may decide that the parents must be interviewed by a panel, and if one of the parents is not South African and not married, the department may ask for a DNA test. The costs of the tests are solely for the client, and not the department.
- After 1 year but before 7 years:
• A completed notice of birth form.
• A certificate from the hospital or maternity home where the child was born. The certificate must be signed by the person in charge, and contain the institution’s official stamp. If the child was born at home then a proof of birth affidavit must be submitted.
• A completed department affidavit giving reasons for late registration of birth.
• A completed department affidavit in support of the notice of birth.
• Biometrics (palm, foot or fingerprint) of the child to be registered.
• Fingerprints of the parent(s) of the child.
• ID or passports of the parent(s).
3. 7 years and above:
If a child is older than 7 and has not been registered, they will need:
• Notice of birth form.
• Proof of birth form for children born at a health facility or proof of birth affidavit for children born at home.
• A completed department affidavit giving reasons for late registration of birth.
• A completed department affidavit in support of the notice of birth.
• Biometrics (ID–size photo and fingerprint) of the person to be registered.
• Fingerprints of the parent(s) of the person to be registered.
• ID or passport of the parent(s) of the applicant.
This means that even if one cannot produce all these documents and one parent cannot be there, the application must still be accepted and considered by Home Affairs.
