How can a mother with an expired visa register her children?

The long answer

Firstly, as the children were not registered within thirty days of birth, as is required by law, you would need to apply for late registration of birth. If it is after 1 year but before 15 years, you would need to give Home Affairs the following documents:

• A completed Form B1-24/1, together with written reasons why the birth wasn’t notified, and as many as possible of the following documents to confirm the child’s identity as are relevant, given their age:

1. A certificate from the hospital or maternity home where the child was born. The certificate must be signed by the person in charge, and contain the institution's official stamp;
2. Official confirmation of the child's personal details, extracted from the school register of the first school attended by the child. The confirmation must be on the school's official letterhead, be signed by the principal, and contain the school's official stamp. (This could refer also to the creche they presently attend.);
3. The child's baptismal certificate – if relevant;
4. Sworn affidavits by the parents;
5. A clinic card.

There was a great constitutional victory for unmarried fathers on 22 September 2021, when the Constitutional Court declared Section 10 of the Births and Death Registration Act (BDRA) unconstitutional and ordered it to be deleted entirely from the BDRA. It was found to be unconstitutional because it did not allow unmarried fathers to register their children’s births in their name when the mother could not do so or was unwilling to do so, or when the mother could not be present. The judgment specifically mentioned the problem of undocumented mothers “…who live and give birth to children in South Africa and are unable to register the births of these children. Third, another difficulty arises as a result of the requirement that parents, who are non-South African citizens, must produce a certified copy of a valid passport or visa.”

All of the above left children without birth certificates.

The Centre for Child Law, which took the case to the Constitutional Court and was represented by Lawyers for Human Rights, said that children are vulnerable members of society who were even more vulnerable when they don't have valid birth certificates because, not only could they be excluded from education, social assistance and health care but, crucially, could be excluded from access to their nationality and become stateless.

As you rightly said in your email, the Constitution guarantees the right of every child born here to an identity, and the 2021 court judgment means that this right must now be realised. The Constitutional Court found that it was not justified to distinguish between children born to married parents and children born to unmarried parents when it came to deciding what surname could be given to a child. Section 10 penalised children born to unmarried parents and was thus unconstitutional. Unmarried fathers will now be able to register their children under their surname, in the absence of the mother or without her consent.

But although this was a crucial victory for children and unmarried fathers, it will not solve your problem with Home Affairs as you are not the children’s biological father.

Given that the visa of your Zimbabwean girlfriend and mother of the children has expired, she obviously does not wish to expose herself to possible deportation by going to Home Affairs to do the late registration of birth for the children. It would seem that your choices are either to sort out her visa with Home Affairs, which may well be a difficult and lengthy process involving your girlfriend returning to Zimbabwe and re-applying for a visa from there, or to legalise your own relationship with the children. This could be by adopting them.

Adoption of South African children is done in terms of the Children’s Act, 2005 (Act 38 of 2005) and is administered by the Department of Social Development, while the notice of adoption must be recorded by Home Affairs in the birth registration of the children.

Under the Children’s Act, written consent to the adoption must be given by the parent or parents or legal guardian of the children. This consent (Form 61) must be signed in the presence of the presiding officer of the Children’s Court who will then attest to the signature. This written consent can be withdrawn by the person giving it within 60 days if they change their mind.

Alternately, if you were to marry your girlfriend to legalise your relationship with the children, the following documents would be required by Home Affairs to marry you, according to their website:

"On the day of the marriage a couple must present the following documents to the person officiating at the wedding:

• Identity documents (for each person getting married);
• If a foreign national is marrying a South African citizen, they should both present their valid passports as well as a completed BI-31 Form (Declaration for the Purpose of Marriage, Letter of no impediment);
• If any of the persons getting married are divorced, then the final decree of divorce should be furnished;
• If any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

Because these are all weighty matters, perhaps you should approach an organisation like Lawyers for Human Rights to advise on your best options, given their extensive experience in dealing with Home Affairs. They have a special statelessness unit in Johannesburg.

These are their contact details:

Email: info@lhr.org.za 

Telephone numbers:

Johannesburg: 066 076 8845

Pretoria: 064 647 4719

Durban: 078 315 1269

Musina: 076 766 7782

Wishing you the best,
Athalie