Nomahlubi straightened her hair, barely glancing up as her 78-year-old great aunt described the soul destroying, years-long battle to get a birth certificate for the child with big dreams in Khayelitsha, Cape Town.
The 10-year-old is one of 258,000 people who have waited up to seven years for the department of home affairs to process their late birth registration applications, with mothers sent from pillar to post, lectured and bullied by officials about their so-called laziness or neglect.
Nomahlubi wants to be a doctor one day — but without a birth certificate she has already suffered exclusion from social grants and basic education.
Now the department is being taken to task by the Children's Institute over the backlog that is robbing thousands of people of their most basic rights.
The institute, aided by the Legal Resources Centre, filed a court application at the Western Cape High Court on Friday for an order compelling home affairs to submit an answering affidavit to litigation filed in December — or be in contempt of court.
The institute seeks not only to get late birth registrations for the caregivers of 15 children, but to have system failures at the department addressed and the withholding of birth certificates declared unconstitutional. They listed a heartbreaking litany of failures by the state.
Those unable to get birth certificates cannot get social grants, are excluded from health-care services, enrolment at school, participation in sport, having adoptions finalised and getting help from the maintenance court for financial support from the other parent.
Nomahlubi's aunt is one of the applicants — primarily mothers, but also relatives and prospective adoptive parents — having cared for the girl since the age of three, after her mother died. The applicants have waited between two and seven years while their applications go undecided.
“The schools would not enrol her without a birth certificate. Only one school, a distance from where we live, was more understanding and accommodated her. It was difficult to go to school because she was very young and sometimes our area flooded. My granddaughter would carry her on her back to and from school,” said the aunt.
“She is very intelligent. I have been to home affairs and social workers several times without joy. We struggled a lot in the beginning. I got the grant after two years. I was raising her with my state pension.”
She said their living conditions were poor. “I have a three-bedroom shack with an outside toilet. It leaks when it rains. Crime is rife. It is not a good place to raise a child. She wants to be a doctor, and I would like her to realise that dream.”
By law births must be registered with home affairs within 30 days. Birth certificate applications filed after this are regarded as late registrations involving a different application process.
Only when a birth certificate is granted is a person’s identity loaded onto the computerised system. Until then, the birth is recorded only on paper in files stored at 320 home affairs offices around the country — meaning there is no up to date database of late birth registrations.
Home affairs missed the deadline to respond to the litigation, only to belatedly indicate on April 3 they would oppose it.
The case stalled again when home affairs missed a May 16 deadline to file their answering affidavit. This prompted the institute and applicants to try to settle the matter.
“On May 28 we offered a court ordered settlement in which home affairs would agree to decide on the 15 individual birth registration applications within 30 days and to file its answering affidavit in respect of the other 258,000 individuals in the late registration of birth backlog by June 13. We requested a response by June 6 but have received no response to date,” said the institute's Paula Proudlock.
“Now we are keen to move the litigation forward and ensure there are no further delays in addressing the rights of these vulnerable applicants and those caught in the severe backlog,” said Cecile van Schalkwyk, senior lawyer at the Legal Resources Centre.
Children's Institute researcher Mbonisi Nyathi said in the court application the institute supported the policy that births ordinarily be registered within 30 days. But there were many reasons this did not happen. Some babies were born in isolated rural areas where cultural practices required mother and child stay home for up to three months.
Many mothers, particularly teenagers, did not have IDs so could not use birth registration desks at the hospital or clinic where they gave birth, Nyathi said.
He said the late birth registration process was arduous, involving verifying documents and attending interviews, despite this not being required by law.
There was no co-operation between offices across provinces, and applications were dealt with manually, making them “invisible to the national office and more susceptible to loss and neglect”.
Affidavits from the caregivers detail how, over years, they were repeatedly failed by officialdom. Sent away with the promise of a return call that doesn’t come; told to wait for an interview; ordered to reapply in the province where the child was born; facing requests for documents not previously required; missing files and lost documents.
“One of the things that amazes me is the resilience of these caregivers, who keep trying for years. It boggles my mind that a person can be kept waiting seven years for a birth certificate. They’re sent back and forth, forced to spend money they don’t have, and home affairs can’t sort their situation. Wars have been fought and won, and peace deals negotiated quicker than home affairs takes to issue a birth certificate,” Van Schalkwyk said.
We discovered that mothers are being lectured and bullied and pressured into admitting negligence just to get the case sorted out quickly.
— Cecile van Schalkwyk, lawyer for Legal Resources Centre
It’s a situation the Children’s Institute wants declared unconstitutional. Their founding affidavit lays out how the then home affairs minister Aaron Motsoaledi told parliament that between 2018 and 2022 the backlog of late registration of birth applications was 258,000. The latest figure is not known.
“Home affairs doesn’t understand that there are real and valid reasons why people apply late for birth certificates and that not all are simple cases of laziness or neglect. Not all are difficult, complex cases — most are because of divorces, deaths, illness and abandonment, the kind of things that are not abnormal in South Africa,” said Proudlock.
Applicants are subjected to a face-to-face interview with five home affairs officials to verify the link between the person applying for the birth certificate and the child.
“Often all the documentation is there, there’s no question about the situation and so an interview is a waste of time. Those five officials would do better processing 20 applications in the time spent questioning a person who has produced all the required documents.”
Van Schalkwyk said they joined some of the interviews: “I’m so angry. We discovered that mothers are being lectured and bullied and pressured into admitting negligence just to get the case sorted out quickly.”
Proudlock said: “One woman said she had been sick. She was told this would be accepted only if she could produce a medical certificate. So even though she had maternal depression and years had passed, she was pressured to admit laziness and neglect. Nobody was interested in anything more than teaching her a lesson.”
On Friday the institute confirmed 11 of the 15 applicants had received birth certificates.
Home affairs spokesperson Siyabulela Qoza said: “The department has engaged the litigants in this case. They have indicated that the number of undocumented children they have used is based on an extrapolation of historic data.”
He said they had resolved 12 of the 15 cases and the final three were being finalised. He said records showed “only 33,000 late registration cases on our books”. Between April 1 and June 17, he said, the department cleared 19,000 applications. Last year they registered 868,000 births, of which 143,301 were late registrations.
• Nomahlubi is a pseudonym used to protect the child's identity.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.