What citizenship is a child born in South Africa to one or two foreign parents entitled to?

The long answer

Thank you for your email asking how two 18-year-old South African-born girls currently in foster care, whose documentation is with their mother in Nigeria, can acquire South African ID documents.

You say that they do have their biological father’s ID, and that it can perhaps be searched to find out if their birth was registered. It’s not clear whether the girls are in touch with their mother who has their documentation, but if they are, that would be a good place to start. It’s not clear from your email whether both, or one, or neither of the parents are South African. If one of the parents is South African, the girls are automatically South African citizens. If neither of them are South African, the girls would take the status of the parents, eg permanent residents, refugees etc.

In October 2014, Home Affairs brought in new regulations which meant that if a child was born in South Africa of foreign parents, that child could only become a South African citizen if she or he had lived in South Africa from birth until 18 years, and the birth had been registered in accordance with the Births and Deaths Registration Act of 1992.

If a child was born in South Africa to permanent residents before October 2014, as would be the case with the girls, they would be citizens if the birth was registered and they had birth certificates with an ID number on them.

So one of the questions would be whether the mother or father registered their births; whether the mother or father has the birth certificates they would have been given if they registered the births.

You could contact Home Affairs and ask them to search the Population Register using the father’s ID. However, as Home Affairs is extremely slow and dysfunctional, it might be better to seek help from an immigration lawyer, if that is financially possible.

If their births were not registered, it is still possible, though complicated, to do a late birth registration.

In 2018, the High Court ruled that it was unconstitutional for the Births and Deaths Registration Act to require that where one parent is not a South African citizen, a certified copy of that parent’s valid passport and visa or permit had to accompany the notice of birth, late registration of birth, or registration of a child older than one year. The court also ruled that the requirement that only an unmarried mother could register the birth of a child was unconstitutional, and that an unmarried father could register the birth where the mother was absent, or illegally in the country.

The court found that parents should not be barred from registering births because they don’t have valid documentation. The court ordered that parents must show valid documentation ‘where possible’ and that a child’s right to birth registration should not depend on the documents their parents do or do not have. This equally applies to late birth registration.

You could also ask the following organisations for help in getting the girls’ ID’s:

• The Scalabrini Centre of Cape Town at info@scalabrini.org.za, tel: 021 465 6433

• Lawyers for Human Rights at: Musina 0115 534 2203, Durban 031 301 0531, Pretoria 012 320 2943, Johannesburg 011 339 1960.

• Legal Resources Centre at info@lrc.org.za in Johannesburg at 011 836 9831 and Cape Town at 021 481 3000.