Baby refused birth registration in South Africa because dad is a Zimbabwean

With the intervention of the court, a child born nearly four years ago will, for the first time, officially have a name and legal standing in South Africa after bureaucratic red tape has denied him of this up to now.

The parents of the child (not identified as he is a minor) did everything asked of them by the Department of Home Affairs to register the birth of their child.

They even underwent a compulsory paternity test. Yet, they received no help in their desperate bid for their child to have an identity.

The parents have been in a permanent relationship since August 2009 and moved in together at the end of 2016.

While discussing marriage, they elected to wait until after birth to start the lobola negotiations.

When the child was born in September 2019, the parents agreed that the child would have the father's surname. Within 30 days of the birth, they completed the birth form.

This was the start of their bureaucratic journey as they were told by Home Affairs that they needed a paternity test as the child was born out of wedlock and the father was a Zimbabwean citizen.

The test was done the following month, and the couple were told by the National Health Laboratory Services that the test results would be available in four to six weeks.

After six weeks, they followed up and were told that the results go directly to the department.

From December 2019 to March 2020, the parents visited the department weekly to follow up on the results, with no luck.

Nearly a year later, in May 2021, the parents were told there was no information on the system and that the department could not assist them.

Desperate for their child to have an identity, they turned to the Gauteng High Court, Pretoria.

Meanwhile, the child had no officially recorded name. He could not get legally vaccinated nor be registered on medical aid.

The child also could not attend a crèche or play school, and he could not travel to meet his family in Zimbabwe.

The court was told that he thus was excluded from the education system and from accessing social assistance and healthcare or exercising his civil rights in obtaining a passport.

In this case, the child's situation was further exacerbated by the fact that the father is not a South African citizen.

The court noted that this required the father to clear even more bureaucratic hurdles to register the minor under his surname.

This is presumably due to departmental circular 5 of 2014, which requires a father of a child born out of wedlock who is also a non-South African to go for a paternity test if he wants his particulars registered in the birth register of the child.

Acting Judge WJ Du Plessis, however, said if the parents were married, they would not have been required to provide a paternity test.

The judge commented that these circulars are "administrative quasi-legislation" that are of great practical importance as they guide the exercise of discretionary administrative powers.

"Whether they are legally binding or to what extent they are binding, depends on whether the act has anticipated the creation of such circulars.

If the act does anticipate such circulars, a court will be more willing to find that it has legal authority," the judge said.

In terms of the circular, an official registering the details of a non-South African unmarried father of a child must have the paternity test results.

The judge said it is not apparent from the act that these circulars are anticipated with specific reference to the registration of births.

The paternity requirement, set out in the circular, unduly infringes on the rights of a minor, which include what is in the child's best interest.

"All the facts, in this case, indicate that it is in the child's best interest to have his birth registered, to make him visible in South African law, and to enable him to exercise and enjoy his citizen rights fully," the judge said in ordering Home Affairs to register the child's birth.