DAVID VS GOLIATH: ADMINISTRATIVE ABUSE OF MOMS RESULTS IN LEGAL ACTION AGAINST HOME AFFAIRS

Court case exposes how Home Affairs red tape is obstructing birth registrations in Western Cape, leaving kids without IDs or access to fundamental rights.

In a shocking case filed at the High Court in Cape Town, the Children’s Institute, representing 15 mothers and care­givers, has highlighted the administrative abuse that mothers face when trying to register the births of their babies when the child is more than a month old.

Most of these questionable practices have been recorded at Department of Home Affairs offices in Western Cape, where officials have “developed their own process” to confirm late registration of birth documents. In some cases, officials have told mothers, especially those from Eastern Cape, to go back to the province where their children were born to collect and confirm their documents.

Despite there being a backlog of more than 258,000 children and young adults not registered by Home Affairs, this new practice of making late registrations more onerous, particularly in Western Cape, is what prompted the legal action.

In November 2024, in response to a parliamentary question, Minister of Home Affairs Leon Schreiber said this was not official policy. 

“All offices in the Western Cape have been instructed to accept any applications irrespective of where the applicant was born. All offices in the Western Cape will be informed that if and when this practice comes to light, corrective action will be taken accordingly,” he said. 

In a separate case in March, the high court ordered the Home Affairs offices in Cape Town specifically to stop the practice of “screening applicants” in the queue outside their door and barring them from seeing an official who could possibly help them.

In the current case, one family said they had to save for a year to go back to Eastern Cape after an official said the last two numbers on the child’s maternity certificate were “too close together”.

Read more: Daily Maverick would like to hear about your experience with Hell Affairs

With the late birth registration backlog now topping a quarter of a million children, the Children’s Institute has asked a judge to order Home Affairs to make a workable plan.

“This challenge just needs an email between the two offices or a phone call,” said Paula Proudlock, a senior researcher at the Children’s Institute. Instead, officials forced mothers to travel hundreds of kilometres back to where the child had been born – sometimes more than once.

According to data from the Children’s Institute, there are at least 258,000 children and young adults who have been left in limbo for years while a decision on their birth registration gets tied up in red tape.

“Ultimately, this situation is untenable and violates the constitutional rights of hundreds of thousands of children and adults,” Children’s Institute researcher Mbonisi Nyathi said in papers before court.

Slow to respond

Home Affairs will oppose the legal action. It had initially refused to settle the individual cases of extreme hardship caused by official decisions. However, Proudlock said the department had not filed its opposing affidavit in time. The deadline was in May.

“We have applied to the Western Cape High Court for an order compelling Home Affairs to file its answering affidavit – or face contempt of court.”

She said that although the case was seeking an order that would change the system, 12 of the 15 moms and caregivers who told their stories in papers before court had now been helped.

In the papers it is stated that the department manages to register only 91.7% of births in public hospitals. Not all hospitals have Home Affairs desks, but even when there are such desks at hospitals, they are not fully staffed. 

Nyathi said that because mothers are usually discharged from public health facilities within six hours of giving birth, that might mean that there would not be a Home Affairs office open for them to register the birth at the hospital.

“While mothers do have the option to return the next weekday to use the Home Affairs desk, for some this is not possible due to transport costs and the need to care for their newborn,” Nyathi said. 

He said that in 2024 Home Affairs had reduced its target for early registration of birth from 750,000 babies a year to 730,000 because it did not have the budget to pay its staff overtime to enable its desks at maternity wards to be fully staffed.

Read more: High Court rules Cape Town Home Affairs ‘screeners’ who reject applications are acting unlawfully

The court papers say that problems surrounding the late registration of births particularly affect teenage mothers who do not yet have their own identity documents. Without an ID they cannot use the birth registration desk at the hospital. 

Statistics South Africa’s 2023 annual report on births reveals that babies born to mothers under the age of 19 are less likely to be registered within 30 days. In addition, some mothers give birth at home, and some traditional customs require them to stay at home with the baby for a month.

A Home Affairs procedure document issued in 2017 states that it is the responsibility of a supervisor to do “quality assurance” for a late birth registration application. 

However, in Western Cape it appears that this has morphed into an application process that is not written down anywhere – affecting mostly mothers from Eastern Cape, but even those who gave birth in Western Cape.

Onerous process

In an affidavit before court, one of the mothers explained that she visited the Home Affairs offices in Cape Town six times. Her child was born at Mowbray Maternity Hospital, but it took months for the hospital to confirm the birth. 

Her problems did not end there, because a Home Affairs supervisor required an official from the Wynberg office to go to the hospital to verify the document. 

Other parents recounted in court papers that officials would wait years before even starting the verification process. One mother said her application was only processed six years after she filed for the late registration of her son’s birth. 

Parents added that when they tried to register a birth in Western Cape if the child had been born in Eastern Cape, they faced insurmountable administrative obstacles. In one case, a mother came to Bellville in Western Cape to register the birth of her son so that his father, who was working in Cape Town, could be present. 

Her maternity certificate from the hospital in Cofimvaba was rejected because an official said the final “2” in 2012 had been written “too close” to the “1”. The family were forced to save for a year to pay for their travel back to Eastern Cape to get another copy from the hospital. 

Home Affairs in Western Cape also told mothers who were originally from Eastern Cape that they would not receive answers to their calls and emails to verify proof of birth certificates. The same official said that Home Affairs officials in Eastern Cape would not travel to the relevant hospital to help with verifications.

Another mother was sent back to Eastern Cape for the late registration of her children’s birth. She was told that the Khayelitsha Home Affairs office was not taking late birth registration cases from “outside the province” any longer because it was “at capacity”.

Some parents had their files closed and were told to apply in the province where the child had been born. 

Unconstitutional failures

Nyathi said in his affidavit: “[Home Affairs] is ultimately a national body, with its operating procedures set on a national basis. Cooperation between offices across provinces should be well integrated within the system to assist in processing late registration of birth applications.”

Proudlock said the Children’s Institute had a case where Home Affairs in Swartruggens, North West, had sent a family back to Western Cape. 

Nyathi added: “This application is brought because of the immense and ongoing failure of the State to decide applications for the late registration of births, and the significant impact this has on the constitutional rights of those whose applications are caught in the backlog, and particularly of children.”

The Children’s Institute has asked the court for a ruling that will help to address the department’s backlog of late birth registration applications, which has gradually increased since 2018. It also wants a court finding that these failures by Home Affairs are unconstitutional.

“From the moment a child is born, that child is the bearer of a range of fundamental constitutional rights. However, a child’s ability to enjoy and access several of these rights, as well as related services and social benefits, is often hinged upon the registration of their birth, the generation of their identity number, and the issuing of birth certificates in their name,” Nyathi stated in his affidavit.

Read more: Why Home Affairs’ backlog clearance might not be the good news it seems to be

He said about 20% of births in South Africa are registered late each year (in other words, not within 30 days of birth). To do this, parents and caregivers must make a “late registration of birth” application at Home Affairs. 

But Nyathi said additional requirements were placed on caregivers and children lodging such applications, including verification of supporting documents and interviews with the applicants and their children.

“What is certain is that there are, at a conservative estimate, at least a quarter of a million people, mostly children, who have been waiting for a number of years for their applications to register their birth to be decided.”

Some of the applicants before court have been waiting for more than six years to have their children’s births registered.

Nyathi said that over the past few years the department had failed to take steps to decrease the “impermissible and unreasonably long time taken to verify applications, conduct interviews, and ultimately decide late registration of birth applications”.

More worryingly, he pointed out, the department had failed to develop a uniform approach to processing these applications that applied in all provinces. 

He added that, in 2023, the department had presented plans for dealing with severe backlogs in a number of documents – but the late registration of births was not one of them. 

A mother’s never-ending ordeal at the hands of errant officials

Refilwe’s* daughter was born in a hospital in Eastern Cape in 2012. After many years of being subjected to vague administrative rules at the Home Affairs office in Bellville, Cape Town, she is still struggling to register her daughter.

“When I was discharged from the hospital, I was not issued with a maternity certificate. I was [only] given a Road to Health Card. I approached the Home Affairs desk at the hospital to register her. I wanted her father’s details to be on her birth certificate and for her to have his surname.”

Refilwe said she was advised that because she was in a customary marriage with the father, he had to be present to register the child’s birth. She went to Cape Town in 2012 to register the birth because the father was working there. However, Home Affairs officials at the Bellville office asked her to provide a “maternity certificate” from the hospital. 

“The hospital had not issued one to me when I gave birth,” she said. 

“I was unable to return to obtain a maternity certificate until December 2012 due to lack of money for transport. In December 2012 I approached the hospital, and I was issued with a maternity certificate.”

Then, in January 2013, she returned to Home Affairs to register the child’s birth. 

However, Home Affairs in Bellville “rejected the maternity certificate due to what they viewed as a clerical error on the maternity certificate”.

The final “2” in 2012 appeared to be written on top of another number.

The couple’s second child was born in Cape Town and her birth was registered with her father’s surname and his details were recorded.

“I was unable to travel to the Eastern Cape to get another copy of the [first child’s] maternity certificate for a long time due to a lack of money. In early 2019, when money was available, I travelled to the Eastern Cape and obtained another copy of the maternity certificate from the hospital.” 

Refilwe applied again for the child’s birth certificate and was told to wait for a call to be interviewed. She was told it could take some time. 

“[The official] showed us a pile of files of other late registration-of-birth applications of children born in the Eastern Cape that were also waiting to be finalised,” she said, adding that officials had explained that health facilities were not responding to their calls and emails to verify births.

The couple waited for several years and Refilwe said they went to the Home Affairs offices at least four times to follow up on their application.

Read more: Hell Affairs

Three years after lodging their application, they were given a form and told to get it completed at school. 

After Refilwe asked Mbonisi Nyathi of the Children’s Institute for help, he went with them to the office, where they were told that the problem Home Affairs had was that officials at Eastern Cape hospitals “did not answer the phone”.

But Nyathi himself phoned the hospital and spoke to the matron of the maternity unit, who confirmed that she would be able to verify the maternity certificate if someone from Home Affairs phoned.

When this information was taken to ­Bellville, the official requested an email address instead. 

According to the affidavit before court, Refilwe said: “The Eastern Cape is a rural province. Some health facilities do not have access to phones or internet to respond to emails… 

“[The official] then indicated that she needs an email address, and refused to contact the hospital using the phone contact details – as she was not allowed to use a phone while working … and she might be fired if seen talking on a phone.”

After the matron provided an email address, the official said she would email her. Five years later, when the Children’s Institute applied to court on behalf of the mother, Home Affairs said it had still not received a reply to the email. The matron had retired by then. 

The official then said that there were 1,600 mothers waiting for interviews.

The couple then tried to register the birth of their grandson, who had been orphaned, but were told that children over the age of seven needed at least two verified documents for late registration-of-birth applications to be finalised – and that applications “were closed” as there were too many of them. DM

*Not her real name.

This story first appeared in our weekly DM168 newspaper, available countrywide for R35.

2025-07-05T11:16:39Z