REGISTRATION OF BIRTHS

General

1) In terms of the Birth and Deaths Registration Act 51 of 1992, the Director-General of Home Affairs (or
any person to whom the Director-General has delegated his/her powers) must be notified of the birth
of every child that was born alive.
2) The notice must be given within 30 days of the child’s birth.
3) The duty to give notice rests on both of the child’s parents, where possible.
4) If neither of them is able to give notice, notice must be given by the child’s next-of-kin or legal
guardian.
5) If the child has already reached the age of 18 years, he/she may personally give notice.

The notice of births must be accompanied by the documents prescribed in the regulations under the Act.
These documents include:

• Proof of birth form attested to by the medical practitioner who attended the child’s birth or examined
the child or his/her mother after the birth;
• An affidavit by a South African citizen who witnessed the birth if the birth did not take place at a
health institution;
• A palm, foot or fingerprint of the child;
• Fingerprints of the parent(s); and
• Certified copies of the identity document, passport, visa or permit of the parent(s), next-of-kin or
guardian.

Births reported later than 30 days from the date of birth but less than a year, the notice must be
accompanied by a form setting out the reasons why notice is being given late.

If the child is older than one year when notice is given, the notice must be accompanied by inter alia:

• A proof of birth form attested to by a medical practitioner who attended to the child’s birth or
examined the child or his/her mother after the birth;
• An affidavit by a South African citizen who witnessed the birth if the birth did not take place at a
health institution;
• A palm, foot or fingerprint of the child if the child is younger than 7 years of age;
• Fingerprints of the parent(s) and of the child if the child is 7 years or older;
• Photographs of the child if the child is 7 years or older; and
• Certified copies of the identity document, passport, visa or permit of the parent(s), next-of-kin or
guardian and of the child if he/she is seeking to register his/her own birth;
• A form providing details of the child’s life events, including his/her place of birth, religious ceremonies
performed, pre-school institutions or crèches the child attended; schools and tertiary institutions the
child attended, and the child’s employment record.

In the case of an abandoned child, notice is given, after an enquiry has been undertaken in terms of the
Children’s Act 38 of 2005, by the social worker involved in the enquiry. (The same applies to an orphan whose
birth has not already been registered).

Names

1) No birth may be registered unless a forename (that is, a first name or individual name) and a surname
(or family name) have been assigned to the child. [Thus, according to South African law, a child may
not be registered as, for example AB Khumalo or Malcolm X.]
2) Notice of a birth of a child who was born of parents who were married to each other at the time of his
or her conception or birth or at any intervening time is given under the surname of either parent or
 both parents’ surnames joined together as a double-barrel surname. - This applies regardless of
whether the parents entered into a civil union or civil or customary marriage.
3) It does however NOT apply if the parents entered into a religious marriage – here the child is not
registered as having been born of married parents even though the child’s parents have joint parental
responsibilities and rights in terms of the Children’s Act on the basis that the child has been born of
married parents – this is a strange and illogical consequence.

Artificial fertilisation or same-sex partners

1) Prior to the coming into operation of section 40 of the Children’s Act 38 of 2005, notice of the birth of
a child who was born as a result of artificial fertilisation of a lesbian partner in a same-sex partnership
was given under the surname of either the birth mother or her same-sex life partner or both life
partners’ surnames joined together as a double-barrel surname.
2) This was the position because of the decision in J v Director General, Department of Home Affairs. In
this case the Constitutional Court placed a child born as the result of the artificial fertilisation of a
lesbian life partner on the same footing as a child born as a result of the artificial fertilisation of a
married woman. – See Heaton pg. 9.
3) The Constitutional Court, inter alia, declared section 5 of the Children’s Status Act 82 of 1987
unconstitutional. Section 5 treated a child born as a result of the artificial fertilisation of a married
birth mother differently from a child born as a result of the artificial fertilisation of a birth mother who
was a partner in a same-sex life partnership. The section afforded the child the status of “legitimate”
(i.e. child born of married parents) if his or her birth mother was married, but not if his or her birth
mother was a party to a same-sex life partnership. The Constitutional Court held that this
differentiation unjustifiably discriminated unfairly against same-sex life partners on the ground of
their sexual orientation. The court amended section 5.
4) Subsequently, the Children’s Act repealed the whole of the Children’s Status Act. However, section
40 of the Children’s Act re-enacted the unamended content of section 5 of the Children’s Status Act.
5) For same-sex partners in civil unions, this is not a problem as the Civil Union Act equates civil unions
with civil marriages. Therefore, a child born as a result of the artificial fertilisation of a civil union
partner qualifies as a child born of married parents.
6) However, as far as same-sex couples are concerned who are partners in a union that falls outside the
scope of the Civil Union Act, section 40 of the Children's Act applies. This provision is subject to the
same constitutional attack as section 5 of the Children's status Act, but Heaton explains that it could
in turn be argued that in light of the fact that same-sex life partners now have the option of entering
into a legally recognised civil union, their fundamental rights and those of a child they may have by
means of artificial fertilisation are not infringed by section 40 of the children’s Act, or that any
infringement there may be is justified by the couple’s choice not to enter into a civil union. See the
explanation on pg. 9 & 10 including the case of Volks v Robinson.

Where parents are unmarried or are not each other’s civil union partners

1) In the case of a child born of parents who are not married to each other and are also not each other’s
civil union partners at the time of the child’s conception or birth or any intervening time, the birth is
registered under the surname of the child’s mother unless the parents jointly request that the father’s
surname be used.
2) The Births and Deaths Registration Act does not make provision for the child’s birth to be registered
under a double-barrel surname consisting of both parent’s surnames.
3) If the child’s birth is to be registered under his or her father’s surname, the father must acknowledge
paternity in writing in the presence of the person to whom the notice of birth is given and enter his
particulars on the notice of birth.
4) A father who wants to acknowledge paternity and enter his particulars after the child’s birth has been
registered may do so with the consent of the child’s mother.
5) If the mother withholds consent, the father may apply to the High Court for a declaratory order
confirming his paternity and dispensing with the mother’s consent.
 6) A gamete donor and the father of a child who was conceived as the result of rape or incest may not,
however, have the child’s birth registration amended to identify him as the father.
7) If the unmarried parents of a child marry each other or enter into a civil union with each other after
the child’s birth has been registered, the birth registration will, on application to the Director-General,
be altered to reflect the child as a child born of married parents.
8) The application may be made by either of the parents or the child’s guardian if the child is a minor, or
by the child personally if he or she is already a major.

Death of a father/ divorce

1) The surname of a child who was born of parents who were married to each other or were civil union
partners may be changed to the child’s mother’s surname if the marriage or civil union is dissolved by
the child’s father’s death.
2) This can also be done if the marriage or civil union is dissolved by divorce and the child’s mother has
sole guardianship or the child’s father consents to the change.
3) The court may dispense with the father’s consent.
4) If the mother enters into a new marriage or civil union, she may apply to have the child’s surname
changed to the surname she bears.
5) In such event, she will need the written consent of the child’s father as well as the consent of her new
husband or civil union partner, unless the court dispenses with the consent.
6) If the mother has sole guardianship, she does not need the father’s consent, but she still needs the
consent of her new husband or civil union partner, unless the court dispenses with the consent.
7) A widow who enters into a new marriage or civil union may also apply to have her child’s surname
changed to hers. In the latter event she needs the consent of her new husband or civil union partner,
unless the court dispenses with the consent.

Unmarried mother

1) If an unmarried mother marries someone other than the child’s father or enters into a civil union with
someone that is not the child’s father, she may apply to have the surname changed to correspond to
hers.
2) She needs the written consent of her husband or civil union partner.
3) If the child bears his or her father’s surname, the mother also needs the written consent of the child’s
father, unless she has sole guardianship or the court dispenses with consent.

Other reasons

1) The surname of any person may be changed for good and sufficient reason.
2) In the case of a minor, the application for the change must be made by either of the child’s parents or
by the child’s guardian.
3) In the case of an adult, the person personally makes the application.
4) Any person’s forename may also be changed.
5) The Act does not stipulate a ground on which the application for a change of forename must be
made.