The Western Cape High Court ruled that Home Affairs regulations excluding certain children and adults from registering their births are unconstitutional. The government has been given 18 months to amend the regulations under the Births and Deaths Registration Act.
Key Exclusions Declared Unconstitutional
The court ruled against home affairs regulations that prevented birth registrations in four primary scenarios:
- Undocumented Parents: Refusing to register a child’s birth because one or both foreign-national parents lack a valid passport, visa, or permit.
- Late Registrations: Failing to provide for the late registration of births for children born to foreign parents.
- Abandoned or Orphaned Adults: Denying birth registration to adults who were abandoned or orphaned as children and lack parental documentation.
- Mixed Documentation Status: Excluding children who have one South African, permanent resident, or refugee parent and one undocumented parent.
Important Clarifications
- Does Not Confer Citizenship: Judge Matthew Francis emphasized that birth registration does not automatically grant South African citizenship under South African law.
- Constitutional Right Has No Expiry: The court noted that Section 28(1)(a) of the Constitution (right to a name and nationality from birth) does not lapse as a person grows older.
- Interim Remedy for Abandoned Adults: Until legislative changes are made, abandoned adults can register their births by submitting detailed affidavits and proof establishing they were born in South Africa, have maintained a continuous connection to the country, and were not registered elsewhere.
- No Constitutional Court Confirmation Needed: Because the ruling applies to regulations (subordinate legislation) rather than an Act of Parliament, the judgment takes effect without requiring confirmation from the Constitutional Court.
