High Court rules Home Affairs cannot refuse birth registration to children of undocumented parents

The Western Cape High Court has ruled that the Department of Home Affairs acted unlawfully when it refused to register the births of children solely because one or both parents lacked valid immigration documents.

Full bench finds regulations unconstitutional

The judgment, delivered on Tuesday, 29 July 2026, by a full bench comprising Judge President Francis with Judges Cloete and Mapoma concurring, declared several birth registration regulations unconstitutional and ordered Home Affairs to register affected children and issue birth certificates.

The court said Home Affairs had unlawfully refused to accept or process birth registration applications where parents could not produce valid passports, visas or permits, and found that those practices and certain provisions of the Births and Deaths Registration Regulations violated constitutional rights and denied legal recognition to many children and vulnerable adults.

Who brought the case

The application was brought by 18 applicants, including parents whose children were denied birth certificates because of their immigration status, adults whose births had never been registered after they were abandoned or orphaned, and Refugee Social Services. The Scalabrini Centre of Cape Town participated in the proceedings as a friend of the court.

Four excluded groups identified

The judges identified four groups who had been excluded from the birth registration system:

• Children born in South Africa where one parent is a South African citizen, permanent resident or recognised refugee and the other is undocumented;
• Children born to undocumented foreign parents;
• Children whose births were not registered within the prescribed period;
• Adults whose births were never registered because they were abandoned or orphaned.

Orders and remedies

The court ordered the Director-General of Home Affairs to register the births of the affected children and issue birth certificates within 60 days, while retaining the department’s power to verify information where necessary.

The judgment declared unconstitutional the regulations requiring foreign parents to produce valid passports, visas or asylum documents before their children’s births could be registered. That declaration of invalidity was suspended for 18 months to allow the Minister of Home Affairs to amend the regulations, but the court ordered that the provisions be read as requiring those documents only where they are available.

During the 18-month suspension, the court ordered that existing procedures applicable to South African citizens, permanent residents and recognised refugees must also be made available to children born to undocumented foreign parents.

Late registration and adults abandoned as children

The judges ruled that the regulations unlawfully failed to provide a process for the late registration of children born in South Africa to undocumented foreign parents.

In relation to adults whose births were never registered after abandonment or orphaning, the court held that they retain a constitutional right to have their births registered. The judges rejected Home Affairs’ argument that the right expires once a person reaches adulthood, saying:

“The phrase ‘from birth’ identifies when the right vests. It does not identify when the right expires.”

The court said these adults must be allowed to apply to register their births using affidavits and other evidence showing they were born in South Africa and have maintained an established connection to the country since childhood. Home Affairs may investigate such claims but cannot reject applications merely because conventional documents are unavailable.

Clarifying citizenship and next steps

The court emphasised that registering a person’s birth does not automatically confer South African citizenship, noting:

“It bears emphasis that what it is not about is any misguided notion that birth registration has the automatic consequence of conferring South African citizenship, since no such consequence exists in our law.”

And reiterating the point later in the judgment, the judges said:

“This judgment determines the registration of birth alone. Whether a person whose birth is so registered is entitled to citizenship is a separate question, governed by the Citizenship Act, and it is not decided here.”

To ensure compliance, the Director-General was ordered to issue a directive to all Home Affairs offices within 60 days instructing officials to accept and process birth registration applications even where parents lack valid immigration documents and to consider affidavits and other forms of evidence where standard documentation is unavailable.

The department must also report back to the High Court on the steps it has taken to implement the judgment and to amend the regulations. The Minister of Home Affairs and the Director-General were ordered to pay the costs of the application.