Is my child born in South Africa a South African citizen?

Yes, if at least one of the child's parents was a South African citizen or a permanent resident at the time of the birth. The South African Citizenship Act 88 of 1995 makes such a child a citizen by birth, and the child's citizenship is recorded when the birth is registered with Home Affairs. If neither parent was a citizen or permanent resident, the child is not a citizen at birth. Such a child may apply for citizenship on reaching the age of majority, provided the child has lived in South Africa since birth and the birth was registered in terms of the Births and Deaths Registration Act 51 of 1992.

That last condition is the one families most often miss. Registering the birth, on time and correctly, is the single most important thing a foreign parent can do for a child born here, whatever the parents' own status.

The two situations

One parent is a citizen or permanent resident. The child is a South African citizen by birth. It does not matter whether the parents are married, which parent holds the status, or whether the other parent is in the country lawfully. What matters is the status of at least one parent on the date of the birth. Registering the birth and obtaining a South African birth certificate and identity number is the step that makes the citizenship visible and usable.

Neither parent is a citizen or permanent resident. The child is not a citizen at birth. The child takes the citizenship of the parents under the parents' own country's law, and the parents should register the birth with their own consulate as well as with Home Affairs. The child's route to South African citizenship is the application at majority described below. In the meantime the child's status in South Africa follows the parents' status, and the child needs to be included in the parents' visas or applications.

There is no rule that a child born on South African soil is automatically South African. People arrive believing there is, and the belief costs them.

How registration works

Every birth in South Africa must be registered with Home Affairs under the Births and Deaths Registration Act 51 of 1992, whatever the parents' nationality or status. Registration is done at a Home Affairs office, and at some hospitals through an office on site, and requires proof of the birth from the hospital or the person who attended it, the parents' identity documents or passports, and the parents' marriage certificate where they are married.

Register within the period the Act sets, which is short. A registration after that period is a late registration, which requires additional proof and an interview, is slower, and can be refused where the proof is thin. The longer the delay, the harder the process, and an adult who was never registered as a child faces the hardest version of all. If you are already late, go now with everything you have.

For a child of a citizen or permanent resident, registration produces a South African birth certificate with an identity number. For a child of foreign parents, it produces a birth certificate that records the birth in South Africa and the parents' details, which is the document the child will need at majority.

Citizenship at majority for a child of foreign parents

The Citizenship Act allows a person born in South Africa to parents who were not citizens or permanent residents to apply for citizenship on reaching majority, if they have lived in South Africa from birth to that date and their birth was registered in accordance with the Births and Deaths Registration Act.

In practice the application turns on proof. Home Affairs will want the registered birth certificate, and evidence of continuous residence from birth: school records, clinic cards, immunisation records, affidavits, proof of the parents' addresses. A family that keeps these documents from the start makes the application straightforward. A family that does not can spend years reconstructing a childhood.

The application is made to Home Affairs under the Citizenship Act. Exactly which supporting documents are required, and how the application is lodged, should be checked against the current forms and practice at the time. See how to become a South African citizen by naturalisation for the related routes and the permanent residence and citizenship calculator.

Children of asylum seekers and refugees

A child born to asylum seekers or recognised refugees is dealt with under the Refugees Act 130 of 1998 for status purposes, and must still be registered under the Births and Deaths Registration Act. The child should be added to the parents' asylum or refugee file. A recognised refugee who later obtains permanent residence, and a child born after that, fall into the first situation above. Lawyers for Human Rights and the Scalabrini Centre handle these cases regularly and are the right first call.

A worked example

The facts and figures are illustrative only.

Chipo and Tinashe are Zimbabwean nationals living in Johannesburg on work visas. Their daughter Rudo is born at a public hospital. Neither parent is a citizen or permanent resident, so Rudo is not a South African citizen at birth. They register her birth at Home Affairs within the period the Act sets, keep the certified birth certificate, and register her at the Zimbabwean consulate so that she has a passport. They add her to their visa applications as a dependant. Over the years they keep her clinic card, school reports and proof of address in one file.

When Rudo reaches majority, she applies for South African citizenship on the basis that she was born here, has lived here since birth, and her birth was registered. The application is decided on the documents, and the file her parents kept is what makes it possible. Had the birth been registered late, or not at all, or had the family left the country for a long period, the application would have been much harder or unavailable.

Illustrative costs: registration itself is a Home Affairs process with no attorney needed. A consultation on the citizenship application at majority might cost R2 000, and an attorney preparing it perhaps R10 000 to R20 000, with Home Affairs fees on top. See what an immigration attorney costs.

What to do this week

1. Register the birth if it is not registered. If you are late, go anyway with every document you have.
2. Confirm each parent's status on the date of birth from the passport or identity document, because that decides the child's citizenship.
3. Get a certified copy of the birth certificate and store it with the parents' passports.
4. Register the birth with your own consulate if neither parent is a citizen or permanent resident, so the child has a passport.
5. Add the child to your visa or asylum file. A child with no status of their own is a problem at every border and every school.
6. Start the residence file: clinic card, immunisation record, proof of address. Keep it for eighteen years.

Documents to gather

Proof of birth from the hospital or the attending person. Both parents' passports or identity documents, and their visas or permits. Marriage certificate where applicable. Proof of the citizen or permanent resident parent's status on the date of birth. For a late registration, affidavits, clinic and school records, and any other proof of the birth and of the child's presence since. For the application at majority, the registered birth certificate and continuous proof of residence from birth.

Realistic timeline

• Birth registration on time: often completed on the day, with the certificate issued then or shortly after.
• Late registration: weeks to many months, with an interview and possible further enquiries.
• Citizenship application at majority: many months, sometimes longer, depending on the office and the quality of the proof.

Home Affairs times vary by office and change without notice. Register early and keep every receipt.

Common mistakes and what they cost

• Assuming birth here means citizenship. Families discover at school enrolment or at a border that the child has no status. Years of difficulty.
• Not registering the birth on time. A late registration is slower and harder and can be refused. An unregistered adult faces the hardest process of all.
• Not registering with the parents' consulate. The child has no passport and cannot travel or be documented by either country.
• Leaving the child off the parents' visa. The child is undocumented in South Africa even though the parents are lawful.
• Throwing away the school and clinic records. The application at majority depends on proving residence since birth.
• Paying an unregulated agent to "get citizenship". Registration and the application at majority are Home Affairs processes. Ask whether anyone you pay is an admitted attorney.

If you cannot afford an attorney

Birth registration and the application at majority are both things you do yourself at Home Affairs. If registration is refused, or a late registration stalls, Lawyers for Human Rights works on statelessness and deals with exactly this problem, and the Scalabrini Centre assists families in Cape Town. The South African Human Rights Commission takes complaints about a Home Affairs office refusing to register a birth. University law clinics take citizenship and registration matters. Legal Aid South Africa on 0800 110 110 applies a means test and can advise. Asylum seekers and refugees should get advice under the Refugees Act 130 of 1998 before dealing with any citizenship question.

Frequently asked questions

My partner is South African but we are not married. Is our child a citizen? Yes, if your partner was a citizen or permanent resident at the time of the birth. Marriage is not a requirement. Register the birth with both parents' details.

I got permanent residence after my child was born. Does the child become a citizen? Not automatically, because the test is the parent's status at the time of birth. The child may have other routes, including through your status, and should get advice. See how to get permanent residence.

We are asylum seekers. Is our child South African? Not at birth. Register the birth, add the child to your asylum file, and keep records for the application at majority. Get advice from Lawyers for Human Rights or the Scalabrini Centre.

Can my child get a South African passport? Only if the child is a citizen. A child of a citizen or permanent resident can be issued with an identity number and, from that, a passport.

What if Home Affairs refuses to register the birth? Ask for the refusal in writing with reasons, and contact Lawyers for Human Rights or the South African Human Rights Commission. A refusal to register is administrative action and can be challenged.