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Press Release: High Court orders Home Affairs to reg­is­ter birth of child born to for­eign mother

For Imme­di­ate Release: 05 April 2017

 

On 4 April 2017, the Gra­ham­stown High Court ordered the Depart­ment of Home Affairs to reg­is­ter the birth of Mr Lawrence Naki’s daugh­ter. This was after the Legal Resources Cen­tre chal­lenged the Depart­ment of Home Affairs’ fail­ure to reg­is­ter the child’s birth because the child’s mother did not have a valid visa and there­fore was con­sid­ered an “ille­gal for­eigner”.

 

The Depart­ment had refused to reg­is­ter the birth, cit­ing the Birth and Death Reg­is­tra­tion Act Reg­u­la­tions which, they argued, pro­hib­ited the sin­gle father from reg­is­ter­ing the birth of his daugh­ter.

 

Mr Lawrence Naki, a South African cit­i­zen, works for the South African National Defence Force and met his wife when he was sent to the Demo­c­ra­tic Repub­lic of the Congo (DRC) on a peace keep­ing mis­sion. They have two chil­dren together – the old­est is cur­rently liv­ing in the DRC. Mr Naki could not reg­is­ter the birth of his South African-born child, even though their child is a South African cit­i­zen in terms of the Cit­i­zen­ship Act.

 

The LRC argued that the Depart­ment of Home Affairs’ inter­pre­ta­tion of the Reg­u­la­tions is incor­rect and that, prop­erly inter­preted, Mr Naki alone should be able to reg­is­ter his daughter’s birth, notwith­stand­ing the fact that the mother is an ille­gal for­eigner. The LRC fur­ther argued that if the Department’s inter­pre­ta­tion of the Reg­u­la­tions is cor­rect, then the impugned Reg­u­la­tions are uncon­sti­tu­tional.

 

The court declared the Department’s refusal to reg­is­ter the birth unlaw­ful and invalid. The court ordered the Direc­tor Gen­eral of Home Affairs to take all nec­es­sary steps to ensure that the birth is reg­is­tered and a birth cer­tifi­cate is accord­ingly issued.

 

How­ever, the court refused to pro­nounce on whether the Department’s inter­pre­ta­tion of the Reg­u­la­tions was incor­rect. Con­comi­tantly, the court refused to make a find­ing on the con­sti­tu­tion­al­ity of the Reg­u­la­tions.

 

The court stated that it would pre­fer to hear the views of an ami­cus curiae on these issues and has accord­ingly requested the Gra­ham­stown Bar to appoint an ami­cus curiae. The LRC wel­comes the court’s request and hopes that this case will lead to clar­ity on the issue of reg­is­ter­ing births of chil­dren born in South Africa to a South African par­ent and a non-South African par­ent with­out the need for costly and time con­sum­ing lit­i­ga­tion.


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