The short answer
You and your mother may need to make a sworn affidavit that your father has left and that neither of you has any way of contacting him to make a certified copy of his ID.
The whole question
Is it possible to make a new birth certificate with my mother’s details only on it, as she is now a South African citizen? Only my South African father’s details are on my birth certificate, but he left my mother and me two years ago and I have no way of contacting him. I am 17 now and I need my ID, but my applications for an ID have been refused multiple times by Home Affairs.
The long answer
If you were not born in South Africa but one of your parents was South African, you can claim South African citizenship by descent as long as your birth was registered under the Births and Deaths Registration Act. Clearly, your birth was registered as you have a birth certificate with your father’s details on it.
Home Affairs held that both parents had to register a child’s birth, but in 2018 in the Naki case, the Eastern Cape High Court ruled that if one parent did not have the required legal documents to be in South Africa, the Births and Deaths Registration Act should be read to mean that both parents’ documents must be presented “where possible” when registering a birth.
It may be that only your father’s ID was used to register your birth as your mother may not have been documented when you were born.
I don’t think it is possible to make an entirely new birth certificate when you have an existing birth certificate that is on the Home Affairs system. Also, if your mother was not a South African citizen at the time of your birth, this may well weigh against your claim to citizenship. What should be possible is to obtain a copy of your father’s ID from Home Affairs and to have your birth certificate amended to include your birth mother’s details.
Let’s look at getting a copy of your father’s ID first:
If your father’s ID number is on your birth certificate, Home Affairs will have his ID on their system and you should be able to get them to make you a copy that you can have certified for your ID application. You only need the certified ID of one of your parents for your ID application.
You and your mother may need to make a sworn affidavit that your father has left and that neither of you has any way of contacting him to make a certified copy of his ID, which you need in order to obtain your own ID, and that is why you are applying directly to Home Affairs for a copy of his ID.
I cannot see why Home Affairs would object to doing this. Section 28 of the Bill of Rights in the Constitution says that “Every child has the right to a name and a nationality from birth.” In terms of Section 36, these rights can only be limited “if this is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom.”
Home Affairs, as a government body, is also bound by the Promotion of Administrative Justice Act of 2000 (PAJA) which guarantees the constitutional right to administrative action that is lawful, reasonable and procedurally fair.
But as a great many people have discovered, Home Affairs officials often seem not to understand their constitutional obligations. If they do not help you, it may help to get an organisation to assist you in obtaining a copy of your father’s ID. I will give a list of possible organisations at the end of this email.
Turning now to amending your birth certificate to include your mother’s details:
On the Home Affairs website that deals with amendments to documents like birth certificates, there is no mention of adding a mother’s details, but only a father’s, viz:
“Inserting the biological father’s particulars in the birth register of a child born out of wedlock:
Both parents must complete Form BI-1682 and submit it to any domestic Home Affairs office.”
But it must be possible to add a mother’s details too.
In order to amend your birth certificate and add your mother’s details, Home Affairs may require a DNA test of you and your mother to prove that she is your mother. Every person gets half their DNA from their mother and half from their father. So, by testing both of you, it can be proved that she contributed half your DNA.
Every person taking a DNA test has to give their permission in writing to be tested, and, as you are not yet 18, your mother would have to give her written consent for you to be tested.
DNA testing is expensive, but one of the companies offering DNA testing, GENEdiagnostics, says that “Legal tests are acceptable to South African courts. Legal tests are required for any court purpose, Department of Home Affairs birth registration and amendment, or any other legal matter.”
According to a 2023 article on DNA test prices in Johannesburg by briefly.co.za, it costs about R1,200 per person. So, if you and your mother were both tested, it would cost about R2,400.
An article on DNA test prices by Money Today says that DNA testing for legal purposes costs about R4,700. Importantly, they also say that “They are usually done using a chain of custody in conjunction with the department or agency that requires the tests to be done. Failure to meet this requirement may make the test inadmissible to the department or agency.”
These are the steps given by Easy DNA :
Ordering the DNA sample kit which will cost R4,795. Once they have processed the order they will send a kit with the submission, forms, sampling kit, and sampling instructions.
They say it is essential for a neutral third party – a doctor, nurse, or any medical professional – to collect the sample. That person (the sampler) not only collects the samples but acts as a witness and makes sure that every step in the chain of custody is followed. The sampler verifies the identities of the parties being tested and does the paperwork. EasyDNA adds that fees paid to the samplers must be paid by the people being tested.
EasyDNA will send the sample collection kit to the sampler’s practice. Once they have received the sample collection kit, the sampler will make the appointment.
They say you need to take two passport-sized photos and for each person tested, an ID document (or passport) You need to take the original plus two photocopies. The sampler must sign the passport photos stating that the people in the photographs are the ones providing the DNA samples for the test.
The samples are collected by using oral swabs which are rubbed inside the mouth for one minute and then left to dry. Then the sampler will close and label each sample and they will be sent immediately to the laboratory in the envelopes provided.
So, if you went the DNA-testing route, the testing company would have to meet the chain of custody requirements of Home Affairs, and it is something you would need to make sure about with the company from the start.
Perhaps the best advice at this point is to approach one of the following organisations which have a lot of experience of dealing with Home Affairs, and ask for their advice and help on the best way forward for you:
For free paralegal advice, email: firstname.lastname@example.org
Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865
Musina 015 534 2203
Durban: 031 301 0531
Pretoria: 012 320 2943
Johannesburg: 011 339 1960
Cape Town: 021 424 8561
Johannesburg: 011 836 9831
Cape Town: 021 481 3000.
tel + 27 (0) 21 465 6433
Wishing you the best,
Answered on Sept. 5, 2023, 1:01 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.