Can Home Affairs refuse to register my child if the mother's visa expired?

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Is a valid visa a determining factor for registering a child?
Is a valid visa a determining factor for registering a child?

The following question is part of Groundup's Answers to your questions series and comes from a reader wanting to know about registering a child's visa at Home Affairs when one parent is not a South African citizen. 


The short answer

No, they may not refuse to register a child’s birth. Here's why.

The whole question

I have a 3-month-old child with a foreign national woman whose visa expired more than 12 months ago. Our child was born in South Africa but is not registered because the Department of Home Affairs refused to do so based on the mother's expired visa. Is a valid visa a determining factor for registering a child?

The long answer

Thank you for your email asking if your child’s mother’s expired visa is grounds for DHA to refuse to register your child.

No, DHA may not refuse to register a child’s birth on the grounds of the legal status of its parents.

In August 2018, the High Court in Grahamstown found that the Births and Deaths Registration Act did not stipulate which parent had the duty to register the birth. The court found that requiring an immigrant parent to produce a valid visa or permit for the registration of the birth of a child, did prevent a father from registering the birth of his child, and this was not what the law intended.

The court found that the father had the right to register his child’s birth, when the mother of the child was either absent, or whose visa had expired, making her an illegal immigrant. The Act also did not prevent an unmarried father from registering his child’s birth.  

As the DHA is notoriously slow in acknowledging or implementing court decisions, you could consult the following organisations for assistance:

Lawyers for Human Rights:

Johannesburg office:

Tel: 011 339 1960

Cape Town office:

021 424 8561

email: lhr@lhr.org.za

Legal Resources Centre:

Email: info@lrc.org.za

Published originally on GroundUp

© 2019 GroundUp.

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