The short answer
There are a few possible options, but the best route may be to get legal help.
The whole question
My girlfriend is from Zimbabwe. Her visa has expired but her passport is still valid. She and her children (aged three and five) have been with me at my home for the last two years. Both children were born in South Africa but, for whatever reason, they were never issued with any registration papers - only the hospital card. We urgently need birth certificates or ID numbers for the children as the five-year-old needs to enrol in school. Currently they are both attending a registered creche that does not require any documents.
I have been in South Africa since 1984 and am a permanent resident with an ID number. I am prepared, with pleasure, to have the children under my name as we are living as a loving family. My girlfriend is worried about making noise at Home Affairs because of her visa status, even though we know that the Constitution guarantees an identification to every child born here regardless of the parents' race, nationality or status.
Despite numerous attempts with Home Affairs, we have been unsuccessful. After queuing for four hours every time, we get mixed messages about what we need to do. The bribing option has been offered to us but we are law-abiding people and want to do this legally.
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:
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:
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:
Johannesburg: 066 076 8845
Pretoria: 064 647 4719
Durban: 078 315 1269
Musina: 076 766 7782
Wishing you the best,
Answered on Oct. 26, 2021, 3:49 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.