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The Western Cape High Court has handed down a landmark judgment declaring as unconstitutional regulations that prevent children of foreign nationals, and abandoned children, from registering their births because they lack valid travel or identity documents.Judge Matthew Francis, with two judges concurring, said the case concerned the constitutional validity of parts of SA’s birth registration laws.“It bears emphasis that what it is not about is any misguided notion that birth registration has the automatic consequence of conferring South African citizenship, since no such consequence exists in our law,” he said.The applicants are 17 individuals and Refugee Social Services, a non-profit organisation that assists asylum seekers and refugees. The first to 13th applicants are parents who have been unable to register their children’s births because of their immigration status, while the remaining applicants are adults who were abandoned or orphaned as children. The births of the 15th and 16th applicants have since been registered, but those of the 17th and 18th applicants have not.The respondents are the director-general and minister of home affairs.The case identified four categories of exclusion from birth registration: children with one South African, permanent resident or refugee parent and one undocumented parent; children of undocumented foreign nationals; children of foreign parents whose births were not registered within 30 days; and adults whose births were never registered because they were abandoned or orphaned.In their court papers, the minister and director-general conceded that the first three exclusions are unconstitutional. The remaining dispute centred on the wording of the interim remedy and whether abandoned adults should also be entitled to register their births.The court held that Section 28(1)(a) of the constitution, which guarantees every child the right to “a name and a nationality from birth”, does not allow that right to lapse with age.“It does not provide that the right lapses at any later moment ... Without a recorded name, date and place of birth, and a record of parentage where parentage is known, the right cannot be given effect.”The court declared it unconstitutional for home affairs to refuse to process birth registrations solely because one parent lacked a valid passport, visa or permit.It also declared unconstitutional regulations that failed to provide for:the registration of children born in SA to undocumented foreign-national parents;the late registration of births of children born to foreign parents; and birth registration for adults who were abandoned or orphaned as children and lack parental documents. The declarations of invalidity relating to the regulations were suspended for 18 months to allow the minister of home affairs to remedy the defects.Pending legislative changes, abandoned adults may register their births by submitting detailed affidavits and personal histories establishing that they were born in SA and had maintained a continuous connection to the country.The minister argued that allowing adults to register their births could create opportunities for fraudulent citizenship claims. “The concern is legitimate in principle, and the (minister and DG) are correct that, under the Citizenship Act, birth registration may constitute an antecedent step to certain citizenship claims.” However, the court said there was no evidence before it to assess the scale of that risk.It also noted that the applicants’ proposed process required detailed affidavits and proof sufficient to satisfy the director-general that the person was born in SA, had maintained an established connection to the country since childhood and had not been registered elsewhere.The court said the orders it made did not require confirmation by the Constitutional Court.It noted that Section 172(2)(a) of the constitution requires confirmation by the Constitutional Court of an order of constitutional invalidity made by a high court, but only where the order concerns an act of Parliament, a provincial act or conduct of the president. “The declarations of invalidity in this judgment concern regulations made under the Births and Deaths Registration Act. Regulations are subordinate legislation and fall outside the terms of section 172(2)(a). Accordingly, they are not subject to the confirmation requirement.”TimesLIVE
