Undocumented parents have secured a significant legal victory after the Western Cape High Court ruled that the Department of Home Affairs acted unlawfully by refusing to register the births of children solely because one or both parents lacked valid immigration documents.
In a judgment delivered on Tuesday, a full bench comprising Judge President Francis, with Judges Cloete and Mapoma concurring, declared several birth registration regulations unconstitutional and ordered the department to register affected children and issue birth certificates.
The ruling also extends legal protection to adults whose births were never registered after they were abandoned or orphaned as children.
Court Finds Department Ignored Settled Law
At the heart of the case was Home Affairs’ practice of declining to accept or process birth registration applications where parents could not produce valid passports, visas or permits.
The judges found that these practices, together with certain provisions of the Births and Deaths Registration Regulations, violated constitutional rights and denied many children and vulnerable adults legal recognition.
The court was unequivocal that the legal position had already been settled in previous rulings, yet officials continued to disregard it.
“The complaint is not that the law is unsettled but that the settled law is not being applied,” the court said.
The bench emphasised that officials may not refuse to receive or process birth registration applications solely because a parent cannot produce a valid passport, visa or permit.
The case was brought by 18 applicants. These included parents whose children were denied birth certificates because of their immigration status, adults whose own births had never been registered after they were abandoned or orphaned, and Refugee Social Services. The Scalabrini Centre of Cape Town participated in the proceedings as a friend of the court.
Birth Registration Is Not Citizenship
A key element of the judgment addressed concerns that registering births of children born to undocumented parents might automatically confer South African citizenship.
The court rejected that notion.
“It bears emphasis that what it is not about is any misguided notion that birth registration has the automatic consequence of conferring South African citizenship, since no such consequence exists in our law,” read the judgment.
The judges reiterated this distinction more than once, underscoring that birth registration records a person’s legal existence but does not determine nationality.
Four Groups Excluded
The court identified four categories of people who had effectively been excluded from the birth registration system:
- Children born in South Africa where one parent is a South African citizen, permanent resident or recognised refugee and the other is undocumented;
- Children born to undocumented foreign parents;
- Children whose births were not registered within the prescribed period;
- Adults whose births were never registered because they were abandoned or orphaned.
In relation to children with one undocumented parent, the judges made it clear that Home Affairs may not turn away applications solely due to the absence of immigration documentation.
The Director‑General of Home Affairs has been ordered to register the births of the affected children and issue birth certificates within 60 days. The department retains the power to verify information where necessary.
Regulations Declared Unconstitutional
The court further declared unconstitutional regulations requiring foreign parents to produce valid passports, visas or asylum documents before their children’s births could be registered.
However, the declaration of invalidity has been suspended for 18 months to allow the Minister of Home Affairs to amend the regulations.
In the interim, the provisions must be read as requiring those documents only where they are available. Home Affairs may still request additional evidence and investigate applications before reaching a decision.
The judges also found that the regulations unlawfully failed to provide a process for the late registration of children born in South Africa to undocumented foreign parents. During the 18‑month suspension period, existing procedures applicable to South African citizens, permanent residents and recognised refugees must also be made available to these children.
Rights Do Not Expire in Adulthood
In another far‑reaching finding, the court ruled that adults whose births were never registered because they were abandoned or orphaned retain their constitutional right to registration.
Rejecting Home Affairs’ argument that the right expires once a person reaches adulthood, the judges held: “The phrase ‘from birth’ identifies when the right vests. It does not identify when the right expires.”
The judgment reinforces that individuals cannot be permanently excluded from legal recognition because of circumstances beyond their control during childhood.
Separate Legal Challenge by Chidimma Adetshina
Meanwhile, Home Affairs Minister Dr Leon Schreiber confirmed that the department is opposing a separate legal challenge brought by former Miss South Africa finalist Chidimma Adetshina.
Speaking on Newzroom Afrika, Schreiber said he could not comment in detail as the matter is before court.
“I don’t want to get into a live court dispute,” Schreiber said.
Adetshina and her three‑year‑old son have approached the Western Cape High Court in proceedings involving Home Affairs, Schreiber and the department’s Director‑General. The matter is expected to be heard on August 28.
The legal challenge follows a dispute over Adetshina’s immigration status and identity documents that began in 2024 after questions were raised about her eligibility to participate in the Miss South Africa pageant.
Broader Implications
The High Court’s ruling marks a significant development in the ongoing debate over immigration control and constitutional rights.
By clarifying that birth registration does not confer citizenship, the bench sought to address government concerns while affirming the fundamental right to legal recognition.
For affected families and vulnerable adults, the judgment opens the door to documentation long denied — a step that could unlock access to education, healthcare and other essential services that require proof of identity.
Home Affairs now faces the task of implementing the court’s orders within 60 days and amending the impugned regulations within 18 months.
As the department considers its next steps, the ruling stands as a clear statement that administrative practice must align with constitutional guarantees — and that the right to be recognised in law does not depend on a parent’s immigration status.
