How can undocumented Malawians register the birth of their baby?

The long answer

The law that applies to all children born in South Africa, whether to South African or foreign parents, is the 1992 Births and Deaths Registration Act (BDRA). All children’s births are required to be registered within 30 days of birth under this Act. When a child is born, a “Notice of Birth” is issued at the clinic or hospital, and a document proving a medical witness to the birth is provided. These documents are required by Home Affairs before issuing a birth certificate, besides the B1-24 form.  

Home Affairs states that, “Undocumented Foreign Nationals who are born in South Africa are issued with a certificate free of charge on registration of their births.” 

Lawyers for Human Rights explains that “children born in South Africa who do not qualify for citizenship are entitled to a birth certificate under the Births and Deaths Registration Act. However, they are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.”

In 2014, Home Affairs introduced new Regulations which said that both the parents of a child must have a valid passport or visa or valid asylum seeker permit or have refugee status to register the birth of their child. This rendered many children effectively without any identity documents at all and created huge difficulties for them in accessing education and health services. These regulations were challenged in court in 2018, and the Eastern Cape High Court in the Naki case ruled that the Births and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth “where possible”.

This was a victory, but since then Home Affairs has proposed new Regulations that only a “Confirmation of Birth” be issued to foreign parents rather than a birth certificate, which will make the situation far more difficult for the child in terms of accessing the right to an identity. This has not been passed into law at this point and it is sure to be vigorously opposed in the courts, which have found many times that it is the constitutional right of every child to be documented. 

As you can see, it is a difficult and complex business for non-South African parents to register the births of their children at the best of times, but it has become far worse under the lockdown:

Home Affairs did not register the births of any children during level 5 lockdown, only announcing that they were resuming birth registration on 1 May 2020. However, this excluded asylum seekers and undocumented persons from registering the birth of their children, because, said Home Affairs, the continued closure of the Refugee Reception Offices (RRO’s) under lockdown meant that there was “no way to verify the authenticity of the asylum seekers permits or status in the country.”

As the RRO’s are still closed, and in the absence of any further announcement by Home Affairs, it is likely that undocumented parents will continue to find it very difficult to register their children presently. And as always, undocumented foreigners run a constant risk of being harassed or arrested.

There are a number of organisations which have been fighting for the rights of children of foreign parents, and who have a great deal of experience in dealing with Home Affairs, and it might be wise to consult with them as to the best way forward in the current circumstances. These organisations include:  

• Lawyers for Human Rights, Musina: 015 534 2203, Durban: 031 301 0531, Pretoria: 012 3202943, Johannesburg: 011 339 1960.

For queries: Sharon Ekambaram, Manager: Refugee & Migrant Rights Programme. Email: sharone@lhr.org.za.

For more information on constitutional rights of children born to non-South African parents: Liesl Muller at 011 339 1960 or email liesl@lhr.org.za

• The Scalabrini Centre of Cape Town, info@scalabrini.org.za, tel: 021 465 6433. You can also call the Legal Support Hotline on 066 076 8845.

To get in touch with their Advocacy Programme, please call 0782603536 or send a please-call. This is operational between 9am and 4pm, Monday to Friday.

• Legal Resources Centre, info@lrc.org.za, Johannesburg: 011 836 9831, Cape Town 021 481 3000.