The Children’s Institute, Legal Resources Centre and eight caregivers take Home Affairs to court over years-long delays in birth registration of hundreds of thousands of children.
Cape Town, 17 June 2025
Six months ago in December 2024, the Children’s Institute (University of Cape Town) and eight caregivers, represented by the Legal Resources Centre, launched litigation in the Western Cape High Court against the Department of Home Affairs. This legal action is due to the ongoing failure of Home Affairs to make decisions on applications for birth certificates, and the significant consequences this has on the constitutional rights of children.
The litigation is supported by affidavits from a further seven caregivers and their 10 children who have also been waiting years for Home Affairs to decide on their birth registration applications.
We seek to compel Home Affairs to attend to the applications of these 15 individuals, as well as the systemic problems that have resulted in at least 258,000 children and young adults waiting for years for decisions on their birth registration applications. The Children’s Institute continues to be approached by more caregivers in the applications backlog and has a growing waiting list of children in need of legal assistance.
Home Affairs failed to timeously file a notice of intention to oppose the litigation but belatedly indicated on 3 April 2025 that it will oppose our application. The answering affidavit was due by 16 May 2025 but Home Affairs failed to meet this deadline. The Children’s Institute and the individual applicants have attempted to settle the litigation by requesting that Home Affairs agree to an order that would see birth certificates issued to the 15 individuals immediately, while the systemic relief related to the backlog is dealt with later. However, this offer was not accepted by Home Affairs. We are now in the process of applying for an order that will put Home Affairs on terms to file its answering affidavit. This is an attempt to move the litigation forward and ensure that there are no further delays in addressing the rights of the vulnerable applicants and those caught in the severe backlog.
The 15 caregivers are primarily mothers, while others are fathers, relatives, foster parents and prospective adoptive parents, who have all lodged applications with Home Affairs for the late registration of their children’s births (and in two instances for their own births). Despite submitting all the necessary documents and complying with the provisions of the Births and Deaths Registration Act and its Regulations, they have been forced to wait for between two and seven years for Home Affairs to decide their applications. Most of them have followed-up multiple times over the years, incurring high transport costs, only to be told to go home and wait for a call for an interview.
Since belatedly becoming aware of the litigation in late May 2025, Home Affairs has prioritised holding interviews to finalise the applications of the 15 caregivers who are involved in our case. Concerningly, these interviews have generally focussed on questioning the circumstances which caused the late registration to be necessary and coercing mothers to admit they were negligent in order for the interview to be short and successful. Ten of the 15 individuals have to date been issued with birth certificates.
Some of the caregivers in our case had been unlawfully advised that Home Affairs in the Western Cape had closed their files and that they must travel to the Eastern Cape to apply again. The caregivers were advised that, despite residing in the Western Cape, applications had to be lodged in their province of birth, being the Eastern Cape. It should be noted that there is no legal requirement that an application for birth registration must be lodged in the child’s province of birth, and many caregivers do not have the financial ability to return to the Eastern Cape for the sole purpose of lodging an application. In the meantime, the children are without birth certificates and are excluded from basic services like health care, early childhood development, education, and social grants.
Consequences for constitutional rights of children
The struggles of these families are described in detailed affidavits that highlight the real consequences of the excessive administrative delays within Home Affairs:
- Children are denied public healthcare services and private medical aid cover;
- hildren are refused enrolment in early learning programmes and school, are asked to leave their schools, or are forced to attend schools far from their homes;
- Children are not allowed to participate in school or club sporting matches or go on school outings;
- Caregivers are refused social grants from the South African Social Security Agency (SASSA) for their children’s basic needs, or social grants are cancelled after three months because birth certificates have not been issued;
- Children’s adoptions cannot be finalised;
- Assistance cannot be obtained from the Maintenance Court to claim financial support from the child’s other parent.
Two of the caregivers are waiting for Home Affairs to issue them with their own birth certificates, which has left them unable to register the births of their own five children. While these caregivers can apply for social grants for their children, they cannot access any of SASSA’s payment options due to not yet having their own IDs.
The backlog of 258,000 birth registrations
On 19 May 2023, the then-Minister of Home Affairs, Dr Aaron Motsoaledi, acknowledged to Parliament that between 2018 and 2022, a backlog of late registration of birth applications had accumulated. The figures provided in the Minister’s answer to Parliament reveal a backlog of just under 258,000 children and adults awaiting decisions from Home Affairs on their birth registration applications. This does not include applications submitted before 2018 or after 2022 – meaning the actual backlog is likely to be far greater.
A late registration of birth application is necessary when a child’s birth is not registered within 30 days. While we support and encourage early registration, there are many valid reasons why some babies are not registered within 30 days:
- Some mothers do not know about the 30-day registration requirement;
- Some mothers in isolated rural areas cannot afford the high cost of transport to a Home Affairs office;
- The cultural practices of some families require mothers and babies to remain at home for up to three months following the birth and/or to name the baby only after consultations with the extended family;
- Mothers who don’t yet have their own ID – often young women who have not yet applied or are unable to apply – are generally not supported to apply for birth certificates for their babies;
- If a mother passes away during or immediately after their child’s birth, the child cannot be registered by a relative until the mother’s death certificate has been finalised;
- Newborn babies and mothers who are transferred to tertiary healthcare facilities after the birth due to complications, may spend their first 30 days in a hospital that does not have a Home Affairs desk;
- Newborn babies abandoned by their mothers need court orders to be registered and this generally takes much longer than 30 days.
It appears that much of the backlog can be ascribed to unreasonably long delays in Home Affairs verifying the supporting documents of applicants (in particular the proof of birth form and evidence of school attendance), lack of inter-provincial cooperation between Home Affairs offices, and the insistence of Home Affairs on conducting interviews for all applications for late registration of birth despite this not being required by the law or by Home Affair’s own policy. Home Affairs in the Western Cape also requires the Provincial Manager to sit on all interview panels, despite this not being required by its own policies. This has caused severe delays in the finalisation of these applications. These applications are also dealt with manually in paper folders by local offices, making them invisible to the national office, and more susceptible to loss and neglect – further delaying the process.
Addressing systemic problems
Our legal action includes seeking a court order declaring the birth registration application backlog unconstitutional, and the development of a clear and detailed diagnosis of the root causes of the backlog, as well as a step-by-step plan to address these causes and prevent the reoccurrence of such severe delays in the future.
Home Affairs has not responded to attempts by the Legal Resources Centre and the Children’s Institute to engage on the backlog in the late registration of births. This litigation is a final attempt to obtain relief for the 258,000 children and adults whose constitutional rights and access to basic services are ensnared in excessive and inefficient administrative processes.
