Brief Summary

Constitutional Law — Birth registration — Unlawful exclusion of applicants without valid documentation — Applicants challenging the refusal to register births of children born in South Africa to non-citizen parents — Court finding that the failure to register based solely on the absence of valid documents is unconstitutional — Regulations invalidated and directives issued for compliance with constitutional standards.

Comprehensive Summary

Summary of Judgment

Introduction

This matter was an application in the High Court of South Africa (Western Cape Division, Cape Town) concerning the constitutional validity of parts of the legal and regulatory framework governing birth registration in South Africa, together with review relief arising from the refusal or failure by officials of the Department of Home Affairs to register particular births.

The applicants comprised seventeen individual applicants and Refugee Social Services (a non-profit voluntary association providing social services to asylum seekers and refugees). The Scalabrini Centre of Cape Town and its trustees were admitted as amici curiae. The respondents were the Director-General of Home Affairs (first respondent) and the Minister of Home Affairs (second respondent).

The dispute was framed around four categories of exclusion from birth registration identified on the papers. These were described as the failure-to-comply exclusion, the valid-documents exclusion, the late-registration exclusion, and the abandoned-adults exclusion. In their answering papers, the respondents conceded the unconstitutionality of the first three categories, leaving the litigation largely concerned with the appropriate remedy for those categories, and with the substantive opposition to the fourth category (abandoned adults).

The general subject-matter of the dispute concerned whether, and on what terms, the Department of Home Affairs was constitutionally and legally obliged to receive, process, and determine birth registration applications where strict documentary requirements could not be met, and whether the regulations failed constitutionally by creating absolute barriers or by omitting categories of persons from any workable mechanism for registration. The judgment emphasised that the matter was not about any automatic conferral of South African citizenship by birth registration, since South African law recognises no such automatic consequence.

Material Facts

The court accepted that it was unnecessary to traverse the applicants’ personal circumstances in full, because the answering affidavit did not seriously dispute the underlying factual basis. The salient facts were those necessary to understand the operation of the impugned legal framework and the four categories of exclusion.

In respect of the failure-to-comply exclusion, the first to seventh applicants were parents of children born in South Africa where one parent was a South African citizen, permanent resident, or refugee, and the other parent lacked valid immigration documentation (or was unable to produce a valid, unexpired passport, visa, or permit). The applicants’ case was that, despite the law being settled in their favour, officials at branch level repeatedly refused to accept or process applications, or refused registration on the basis of the missing documentation alone. The respondents accepted that there had been inconsistent treatment and decision-making at branch level.

In respect of the valid-documents exclusion, the eighth to thirteenth applicants were parents where both parents were foreign nationals and neither held valid documentation, including instances where asylum seeker permits had lapsed while refugee applications were pending. The court accepted that the Regulations required, in absolute terms, the production of valid passports and visas/permits or asylum seeker permits, and that this operated as a practical bar to registration where documentation did not exist or could not be produced. The respondents conceded that the regulatory scheme contained a constitutional defect in this regard.

In respect of the late-registration exclusion, the court accepted that a separate gap arose because the provisions governing late registration (in Regulations 4 and 5, read with section 9 of the Births and Deaths Registration Act 51 of 1992) did not, on their terms, apply to children born in South Africa to parents who were neither citizens nor permanent residents nor refugees. The respondents conceded this defect.

In respect of the abandoned-adults exclusion, the fifteenth to eighteenth applicants were adults who had been abandoned or orphaned as children and whose births had never been registered in childhood. They could not produce the documents demanded by Regulation 5(3)(f), (g), (h), and (k), because those documents did not exist, were unknown to them, or depended on information about parents who were deceased, unknown, untraceable, or themselves undocumented. By the time of hearing, the births of the fifteenth and sixteenth applicants had been registered (after the litigation was launched and following specific intervention), while the seventeenth and eighteenth applicants remained unregistered. The court treated the systemic challenge as not rendered moot by the subsequent registration of two applicants.

The amici curiae placed evidence before the court about conditions in the Refugee Reception Office system, including closures, backlogs, and procedural difficulties that could cause asylum seekers to lose documented status through no fault of their own, with consequences for their children’s ability to obtain birth registration. The court recorded that this evidence informed its understanding of practical operation, while stating that the constitutional analysis rested on the text and the law.

Legal Issues

The central legal questions concerned (i) whether particular aspects of the administrative practice and regulations governing birth registration were unlawful and unconstitutional, and (ii) what just and equitable remedy should follow, particularly in circumstances where the respondents conceded the unconstitutionality of three of the categories.

The issues were predominantly questions of law (constitutional validity of regulations; legality of refusals; the status of internal Standard Operating Procedures), and of the application of constitutional norms to an administrative and regulatory scheme (including interpretation through section 39(2) of the Constitution). In the abandoned-adults category, the dispute also engaged a measure of value judgment in remedy-design, including how to balance access to registration against verification concerns, while remaining within the court’s remedial powers.

More specifically, the court was required to determine whether:

The refusal or failure by Home Affairs to receive, process, and determine applications for registration in category 1, solely because one parent lacked valid documentation, was unlawful and unconstitutional, and whether individual refusals should be reviewed and set aside.

Regulation 8(3)(c), (d), and (e) of the 2014 Regulations was unconstitutional because it required valid documentation in absolute terms, thereby failing to provide for registration where one or both foreign-national parents lacked such documents, and what interim reading-in should apply pending amendment.

The Regulations were unconstitutional insofar as they made no provision for late registration of children born in South Africa where neither parent was a citizen, permanent resident, or refugee, and whether internal Standard Operating Procedures could serve as an interim regime.

Regulation 5(3)(f), (g), (h), and (k) was unconstitutional insofar as it failed to provide a workable mechanism for adults who were abandoned or orphaned as children and could not produce parental or birth documentation, and whether section 28(1)(a) of the Constitution, read with section 39(2), supported the relief sought for adults.

The court also addressed ancillary procedural issues, including condonation for late filing of the answering affidavit, a joinder point under Rule 10A (later abandoned), and mootness.

Court’s Reasoning

The court located the dispute in the constitutional right in section 28(1)(a) of the Constitution, which provides that every child has the right “to a name and a nationality from birth”. The court held that “from birth” identifies when the right vests, and does not support an inference that the right lapses at a later date. The court reasoned that the right is given practical effect principally through birth registration, because without a recorded identity (name, date and place of birth, and parentage where known), the right cannot be realised.

The court adopted a purposive approach to the Births and Deaths Registration Act 51 of 1992 (BDRA) and its Regulations, informed by Constitutional Court jurisprudence stressing the historical harms of exclusion from legal recognition. It relied on the proposition that statutory and regulatory provisions affecting identity, nationality, and registration should not be construed narrowly so as to deny legal personhood or produce statelessness. It treated the BDRA as contemplating universal registration, subject to the Director-General’s statutory verification and investigative powers, particularly in sections 7 and 9(1A).

The court accepted that documentary and verification concerns may be legitimate in principle, but repeatedly emphasised that absolute barriers—especially those operating against children for reasons unrelated to their own conduct—do not withstand constitutional scrutiny, and that the BDRA already equips the Department with powers to require further proof, investigate, and require biometrics where appropriate.

Category 1: Failure-to-comply exclusion

The court noted that the legal position requiring registration in the circumstances of category 1 was settled, including by the decision in Naki and reinforced by Centre for Child Law v Director-General: Department of Home Affairs. The respondents’ stance that the problem was one of internal compliance and training did not, in the court’s view, answer the evidence that refusals persisted in practice. The court held that where a settled legal position is not implemented, declaratory relief serves a clarificatory and regulatory function, providing a clear standard against which future official conduct can be measured and enabling further relief should non-compliance continue. It referred to Treatment Action Campaign (No 2) as illustrating the use of declaratory and mandatory orders to secure compliance by organs of state.

The court framed the core unlawfulness as a refusal to receive, process, and determine an application solely because a parent lacked valid documentation. It distinguished this from the content of registration outcomes (for example, whether an identity number is assigned), which remained governed by the Regulations and was not determined by the order. It granted review relief setting aside specified refusals/failures to register and directed registration within 60 days, while expressly preserving the Director-General’s powers under BDRA sections 7 and 9(1A). It also extended, to the extent necessary, the time-bar in section 7(1) of PAJA, treating the extension as justified in the interests of justice.

Category 2: Valid-documents exclusion

The court held that Regulation 8(3)(c) to (e), requiring valid, unexpired documentation in absolute terms, operated as an absolute bar where documents did not exist or could not be obtained. The respondents conceded the inconsistency with section 28(1)(a) and with the structure of section 9 of the BDRA, which draws no such distinction based on nationality or immigration status. The dispute was accordingly remedial.

The applicants sought a suspended declaration of invalidity with an interim reading-in, inserting “where available” (or “where applicable and available”) into the impugned provisions. The respondents proposed a structured interview approach, but by argument accepted interviews should not be mandatory in all cases. The applicants accepted that safeguards could exist and that the Director-General’s verification powers should not be displaced.

The court rejected imposing a free-standing mandatory interview regime by judicial order as unnecessary and not just and equitable. At the same time, it accepted that the order should expressly preserve the Director-General’s verification powers to meet the respondents’ concerns, without creating an extra-statutory procedural framework. The court further held that concerns about fraud and trafficking were asserted without substantiating evidence, echoing the Constitutional Court’s approach in Centre for Child Law (CC) in rejecting justification founded on unsupported assertions.

The court emphasised that the BDRA already contains the necessary safeguards. The interim reading-in prevented missing documents from functioning as an absolute bar, while leaving intact the Director-General’s ability to require additional proof, investigate, and refuse applications on the evidence. The court also reasoned that a mandatory interview in every case could deter parents (including those fearing contact with authorities due to immigration status) from applying, undermining the constitutional purpose of the remedy. It suspended the declaration of invalidity for 18 months, treating this as long enough for amendment but short enough to limit dependence on interim relief.

Category 3: Late-registration exclusion

The court held that the Regulations were constitutionally defective insofar as they made no provision for late registration of children born in South Africa where neither parent was a citizen, permanent resident, or refugee, a defect conceded by the respondents.

The respondents proposed that internal Standard Operating Procedures (SOPs) be endorsed as the interim mechanism. The court rejected that approach on legality grounds, holding that the BDRA requires registration “in the prescribed manner”, and that the prescribed manner is created by regulation. Internal SOPs, being unpublished and not lawfully made as regulations, could not supplant regulations and could not serve as the legal source of authority. The court relied on Minister of Health v New Clicks and Akani Garden Route v Pinnacle Point Casino for the proposition that internal guidelines cannot replace properly promulgated subordinate legislation. It also noted, as a practical matter, that the respondents’ own evidence showed inconsistent application of SOPs at branch level, reinforcing their inadequacy as an interim substitute for legal rules.

The court accepted the applicants’ proposed remedy: during a suspension period, Regulations 4 and 5 (as amended by the reading-in ordered in Naki) would apply, with changes required by context, to late registration for children of foreign-national parents outside the citizen/permanent resident/refugee categories. SOPs could continue as internal administrative machinery only to the extent consistent with the order.

Category 4: Abandoned-adults exclusion

This was the principal contested category. The respondents resisted on textual, institutional/statutory, and policy grounds. The court’s reasoning proceeded primarily via section 39(2) of the Constitution, which obliges courts, when interpreting legislation, to promote the spirit, purport, and objects of the Bill of Rights.

On the textual objection, the court held that a reading of section 28(1)(a) that would allow the right to vest at birth but become irredeemable at age 18 would be untenable, since the state could effectively extinguish the right through prolonged failure to register. The court treated section 39(2) as the primary interpretive route: the BDRA was silent on adults whose births were not registered in childhood due to abandonment, orphanhood, or state failure, and this silence had to be addressed in a constitutionally compliant manner.

On the institutional argument, the court rejected reliance on the maxim generalia specialibus non derogant, reasoning that the difficulty was not a conflict between a specific and a general provision but a true lacuna, because neither section 12 nor the relevant regulations provided for an abandoned/orphaned person who had reached adulthood without registration. The court considered it preferable to resolve the matter via interpretation and regulatory relief without reaching (and therefore without declaring invalid) sections of the BDRA itself, thereby avoiding any confirmation implications that would follow from invalidating an Act of Parliament.

The court addressed reliance on Khoza, holding that it illustrated that registration can follow where birth in South Africa is established on evidence (including via investigation), but also demonstrated the inadequacy of requiring abandoned adults to litigate case-by-case in the absence of a workable framework. The court considered that the interim arrangements should not dispense with the requirement that the Director-General be satisfied that the person was born in South Africa; rather, the arrangements should remove impossible documentary prerequisites and specify acceptable alternative proof.

On fraud and citizenship concerns, the court accepted the legitimacy of verification concerns in principle but held that the record contained insufficient evidence to substantiate the scale or nature of the risk. It further emphasised that the remedy did not amount to “registration on assertion”. It required affidavits substantially complying with Form DHA-288 and a detailed life history enabling the Director-General to determine, on a balance of probabilities, whether the applicant was born in South Africa and whether the birth had not been registered elsewhere. The court stressed that “established presence in and connection to South Africa from childhood” was relevant evidence but not a substitute for proof of birth in South Africa. It expressly preserved the Director-General’s verification powers under BDRA sections 7 and 9(1A) and affirmed that refusals or failures to decide would remain reviewable.

In remedy, the court concluded that Regulation 5(3)(f), (g), (h), and (k) was invalid to the extent that it failed to provide for adult registration for abandoned/orphaned persons unable to produce the specified documentation. It suspended invalidity for 18 months with interim reading-in and interim arrangements. For the seventeenth and eighteenth applicants (whose births remained unregistered), the court declined to order direct registration because whether they were born in South Africa remained a factual question to be determined within the newly created process. It directed the Director-General to receive and determine their applications within 90 days.

Procedural and remedial considerations, including confirmation and costs

The court granted condonation for the late answering affidavit, finding the delay adequately explained and the matter of public importance. It dismissed the joinder point (Rule 10A) as misconceived, noting the Department of Health and Department of Social Development lacked a direct and substantial interest in relief directed at the birth registration regime administered under the BDRA.

On mootness, the court held that category 1 relief was not moot despite Naki because the complaint was non-compliance in practice, and a declarator served a forward-looking function. It also held that the abandoned-adults challenge was not moot merely because two applicants later obtained certificates after litigation and intervention.

The court held that the declarations of invalidity concerned regulations (subordinate legislation) and therefore did not require confirmation by the Constitutional Court under section 172(2)(a), which is confined to Acts of Parliament, provincial Acts, or presidential conduct. It noted that no invalidity order was made against provisions of the BDRA itself.

On costs, the court applied Biowatch, awarding costs to the successful applicants against the state. It acknowledged the respondents’ concessions and responsible narrowing of disputes but held that this did not justify depriving successful constitutional litigants of costs, particularly where litigation was required to secure compliance and expose defects. Costs were awarded on scale C, including the costs of two counsel where employed.

Outcome and Relief

The court granted extensive declaratory, review, and structural relief.

It declared unlawful and unconstitutional the refusal or failure by the respondents or departmental officials to receive, process, and determine birth registration applications for children born in South Africa where one parent is a South African citizen, permanent resident, or refugee and the other parent lacks valid documentation, where the refusal was based solely on the absence of such documents. It reviewed and set aside specified refusals/failures to register and directed the Director-General to register the identified births and issue birth certificates within 60 days (or within 60 days of lodging a substantially compliant application, whichever was later), while preserving verification powers under BDRA sections 7 and 9(1A).

It declared Regulations 8(3)(c), (d), and (e) unconstitutional and invalid to the extent that they failed to provide for registration of a child born in South Africa where neither parent is a citizen, permanent resident, or refugee and one or both parents lack valid documents. The declaration was suspended for 18 months, and an interim reading-in inserted “where available” and “where applicable and available” into the impugned sub-regulations. It directed registration of identified births under this interim regime, with verification powers preserved.

It declared the Regulations unconstitutional and invalid to the extent that they made no provision for late registration of children born in South Africa where neither parent is a citizen, permanent resident, or refugee. The declaration was suspended for 18 months, and the court ordered that Regulations 4 and 5 (as amended by Naki) apply, with contextual changes, to this category during the suspension, with SOPs permitted only as internal machinery consistent with the order.

It declared Regulations 5(3)(f), (g), (h), and (k) unconstitutional and invalid to the extent that they failed to provide for registration of a person aged 18 or older who was abandoned or orphaned as a child and cannot provide the required parental/birth documentation. The declaration was suspended for 18 months, and the court ordered interim arrangements, including acceptance of affidavits substantially complying with Form DHA-288 and determination by the Director-General on a balance of probabilities, with verification powers preserved. It directed the Director-General to determine the seventeenth and eighteenth applicants’ applications within 90 days.

The court granted structural relief requiring the Director-General to issue a directive/circular to all relevant offices within 60 days, to file affidavits confirming issuance and reporting on implementation, and to ensure officials receive and consider applications and alternative evidence rather than refusing solely for lack of valid documentation.

The court extended the PAJA section 7(1) time period to the application launch date to the extent necessary for the review relief granted.

The Director-General and the Minister were ordered, jointly and severally, to pay the applicants’ costs on scale C, including costs of two counsel where employed.

Cases Cited

Naki and Others v Director General: Department of Home Affairs and Another [2018] 3 All SA 802 (ECG).

Centre for Child Law v Director-General: Department of Home Affairs and Others 2022 (2) SA 131 (CC).

Chisuse and Others v Director-General, Department of Home Affairs and Another 2020 (6) SA 14 (CC).

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).

Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC).

Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA).

Khoza v Minister of Home Affairs and Another [2023] 2 All SA 489 (GP).

Centre for Child Law and Others v Media 24 Limited and Others 2020 (4) SA 319 (CC).

Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (including sections 9, 10, 28(1)(a), 28(2), 36, 39(1)(b), 39(2), 172(1)(b), and 172(2)(a)).

Births and Deaths Registration Act 51 of 1992 (including sections 7, 9, 9(1A), 9(3A), and 12).

Promotion of Administrative Justice Act 3 of 2000 (including sections 7(1) and 9).

Refugees Act 130 of 1998 (including section 22).

South African Citizenship Act 88 of 1995.

Criminal Procedure Act 51 of 1977 (section 154(3) as discussed via Media 24).

Children’s Act 38 of 2005 (referenced contextually in relation to Regulation 9 and section 12 BDRA).

Rules of Court Cited

Uniform Rule of Court 10A.

Held

The court held that the Department of Home Affairs may not refuse or fail to receive, process, and determine a birth registration application for a child born in South Africa, in circumstances where one parent is a South African citizen, permanent resident, or refugee and the other parent lacks valid immigration documentation, where the refusal is based solely on the absence of such documentation. Such conduct was declared unlawful and unconstitutional, and particular refusals/failures were reviewed and set aside with directions for registration.

The court held that Regulation 8(3)(c), (d), and (e) of the 2014 Regulations was unconstitutional to the extent that it created an absolute documentary barrier that failed to provide for registration of children born in South Africa to foreign-national parents lacking valid passports/visas/permits (or asylum seeker permits). The court suspended invalidity and ordered an interim reading-in of “where available” language, expressly preserving the Director-General’s statutory powers of verification and investigation under the BDRA.

The court held that the Regulations were unconstitutional insofar as they made no provision for late registration of children born in South Africa where neither parent is a citizen, permanent resident, or refugee. It suspended invalidity and ordered an interim regime applying Regulations 4 and 5 (as amended by Naki), with contextual changes, while rejecting internal SOPs as a substitute for lawful regulations.

The court held that Regulation 5(3)(f), (g), (h), and (k) was unconstitutional to the extent that it failed to provide a mechanism for adults who were abandoned or orphaned as children and cannot produce parental or birth documentation, and that section 28(1)(a), read with section 39(2), required a constitutionally compliant interpretation permitting adult registration on appropriate proof of birth in South Africa. The court suspended invalidity, ordered interim arrangements for alternative proof, and directed the Director-General to determine pending adult applications within specified timeframes.

The court held that the invalidity orders concerned subordinate legislation and did not require Constitutional Court confirmation under section 172(2)(a). It awarded costs to the successful applicants under Biowatch principles, on scale C, including two counsel where employed, and granted structural relief to promote uniform compliance.

LEGAL PRINCIPLES

A constitutional right to “a name and a nationality from birth” under section 28(1)(a) vests at birth and is practically realised through birth registration; the phrase “from birth” indicates the moment of vesting and does not, without more, imply an expiry at majority. A construction that would render the state’s failure to register a child in childhood irremediable in adulthood was treated as untenable.

The Births and Deaths Registration Act 51 of 1992 contemplates broad access to birth registration, subject to verification safeguards, including the Director-General’s powers to require further proof and investigate (section 7) and to require biometrics (section 9(1A)). Regulatory requirements must operate consistently with the statute and constitutional rights, and may not create unjustified absolute barriers that exclude children from registration for reasons not of their making.

Where subordinate legislation is constitutionally defective, an internal administrative instrument such as Standard Operating Procedures cannot lawfully replace regulations made under empowering legislation; internal guidelines may operate as administrative machinery only insofar as consistent with the governing law and court orders.

In crafting remedies under section 172(1)(b) of the Constitution, a court may suspend declarations of invalidity and order interim reading-in to ensure access to rights while allowing the executive time to remedy defects, particularly where ongoing harm would persist absent interim relief. Interim relief may preserve and expressly record existing statutory verification powers to address legitimate integrity concerns without creating extra-statutory procedural regimes.

In constitutional litigation between private parties and the state, Biowatch principles apply: successful litigants vindicating constitutional rights should ordinarily receive their costs against the state, and responsible conduct or late concessions by the state do not, without more, displace that principle where litigation was necessary to secure relief and compliance.

Cirangashane and Others v Director General of Home Affairs and Another (17367/2022) [2026] ZAWCHC 381 (29 July 2026)