Birth certificates for undocumented minors

Birth certificates for undocumented minors

Lesley Blake studied at
Wits University and was
admitted as an attorney
in 1995. Her practice
consists of service to the
SMME market – general
legal advice, collections,
drafting agreements and
general litigation. The
practice is also slanted
towards Family Law
including access and
maintenance disputes.

Lesley Blake studied at Wits University and was admitted as an attorney in 1995. Her practice consists of service to the SMME market – general legal advice, collections, drafting agreements and general litigation. The practice is also slanted towards Family Law including access and maintenance disputes.

The Department of Home Affairs appears to have a policy (unrelated to any law that I can find) that they will only issue a Birth Certificate in the following circumstances:

  1. To a woman who is the mother of the child, personally appearing to bring that application;
  2. Where there is documentary evidence of the birth of the child in a South African hospital or medical facility;
  3. Where she has registered the birth within seven days.

In any circumstances apart from the above, all of us as role-players in the social welfare and legal environments have had endless difficulty in getting a birth certificate issued.

Where there is a biological unmarried father of the child, Home Affairs requires that he have a genetic test to prove his fatherhood. If so established, there are some instances where they issue the birth certificate to him, particularly when Home Affairs already have him as the father on their system or where the Children’s Court forces them to do so. Of course, the law is that both parents have parenting rights and there is no real reason in law why a birth certificate could not simply be given to a father. Nevertheless, it is likely one would need a court order to force them to do so.

In cases where the other aspect is not satisfied – for example when the mother is missing or the mother does not have documentary evidence of the birth, or where the birth was not timeously registered, there would be room to bring an application to force Home Affairs to issue a birth certificate. In each such application one would need to establish to the satisfaction of the Court that:

  1. The child is a South African – whether by birth or descent. Thus, place facts before the Court on affidavit about who the parents are and the place of birth of the child;
  2. There is good cause why the mother cannot appear to apply for the certificate;
  3. The person/s applying for the birth certificate have parental rights and responsibilities or ought to have them or are entitled to the issuing of the certificate. So even where the applicant is the aunt or a children’s home or a social worker, that person should be entitled to get the birth certificate and have a purpose for it.

As a final point, the application should be brought by way of a Notice of Motion and a Founding
Affidavit. Remember that it is very easy to lose an application by asking for more urgency than the
circumstances justify. Take your time and win the first time.

 

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