For Immediate Release: 14 February 2017
Yesterday, 13 February 2017, two children born in South Africa to a Swazi mother and South African father have finally had their births registered and unabridged birth certificates issued after the LRC intervened on their behalf.
The couple approached the LRC after they were unable to register and obtain birth certificates from the Department of Home Affairs because the mother entered South Africa when she was 15 years old and she has been unable to obtain any documentation legalising her stay.
The couple have been in a relationship since 2007 and made an application for the registration of their oldest child nine years ago. Because the couple have been unable to obtain the birth certificates for the children, the oldest child had been denied entry into school.
The LRC launched an urgent application in the Durban High Court on 1 April 2016 seeking an order for the Department of Home Affairs to issue the birth certificates.
The Department of Home Affairs and The Director General of Home Affairs opposed the application, on the basis that they would only be in a position to issue the children with birth certificates, once the mother ‘sorted out’ her documentation.
However, at all times, they admitted that the children were South African, in that they were born in South Africa and that their father was South African.
In the High Court, the LRC argued that section 29(1)(a) of the Constitution entitles everyone to the right to a basic education. Furthermore, Section 28 of the Constitution entitles every child to the right to a name and nationality from birth. Therefore, the State is under an obligation to realise the children’s right to basic education and the right to a name and nationality from birth.
Section 2 of the South African Citizenship Act states that any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, must be registered and provided with a birth certificate. The Births and Deaths Registration Act allows for the registration of the birth of a minor child in the circumstances where one of the parents of the child does not have any form of proof of identification.
Sadly, the father passed away on 5 May 2016.
When the LRC returned to court on the 15 December 2016, the Minister of Home Affairs and the Director General of Home Affairs undertook to issue the two minor children with birth certificates on or before 31 January 2017.