Children Born in South Africa: Birth Registration, Citizenship by Descent, and Naturalisation on Reaching Majority

Children Born in South Africa: Birth Registration, Citizenship by Descent, and Naturalisation on Reaching Majority

Ali [2018] ZASCA 169 | Chisuse [2020] ZACC 20 | Centre for Child Law [2021] ZACC 31 | Cirangashane [2026] ZAWCHC 381 — four judgments, one road from birth registration to citizenship.

A child is born in South Africa. The hospital issues a record of birth, but Home Affairs refuses to register it, because the mother's documents have expired, or the parents are not South African, or the father is unmarried. Without a birth certificate the child cannot get a passport, cannot enrol at school, cannot obtain any identity document — in law the child scarcely exists.

This instalment covers four judgments spanning 2018 to 2026. They deal, respectively, with: whether the child can be registered, whether the child is a South African citizen, whether the father can register alone, and what to do when neither parent has documents.

For every Chinese family having children in South Africa, this is the instalment most worth keeping.

Part 1 — First, Distinguish Three Things

Birth, nationality and naturalisation are three different things

• First: birth registration. Under the Births and Deaths Registration Act 51 of 1992. What is registered is the fact of birth, and it has nothing to do with nationality. A child born in South Africa to foreigners should equally be registered.
• Second: citizenship. Under the South African Citizenship Act 88 of 1995. South Africa is principally jus sanguinis: where one parent is a South African citizen or permanent resident, the child is a South African citizen at birth (s 2). Where neither parent is a citizen or permanent resident, the child is not.
• Third: naturalisation on reaching majority. s 4(3): a person born in South Africa to non-citizen parents, whose birth has been registered and who has lived in South Africa continuously from birth to majority, may apply for South African citizenship on reaching majority. This is the door left open for "foreign children born in South Africa."

⚠ The one sentence that matters most to Chinese families

Where both parents are Chinese citizens holding temporary visas, a child born in South Africa does not automatically acquire South African nationality. But the child should be registered at birth, and if the child lives continuously in South Africa to majority, may apply for naturalisation under s 4(3).

Birth registration is therefore not an optional formality — it is the key to that door eighteen years later.

Part 2 — Ali: Naturalisation May Be Applied for on Majority, and Home Affairs May Not Refuse to Receive Applications on the Ground That "There Are No Regulations"

Case file

The Department's defence had two layers. First: s 4(3) came into force only in 2013 and cannot apply to persons born before 2013, otherwise it would be retrospective application.

The rules this case established

1. This is not retrospective application. The Court held that s 4(3) confers a future right to apply, and does not alter any vested right. A person born before 2013 who reaches majority afterwards may apply once they meet the requirements at majority.
2. "The regulations have not yet been made" is no reason to refuse applications. The Department argued that the statute requires application under regulations, that the regulations had not yet been promulgated, and that applications therefore could not be received. The Court ordered: promulgate the regulations within one year, and in the interim receive applications on affidavit. An administrative body may not use its own inertia to block a statutory right.
3. Such an order does not offend the separation of powers. The Department also argued that the High Court had exceeded its powers. The SCA disagreed — the specific content of the regulations remains within the Minister's discretion; the Court merely ordered him to exercise his function within a time limit.

◆ The four requirements of s 4(3)

As distilled from the situation of the six respondents in this case: ① born in South Africa; ② neither parent a South African citizen or permanent resident; ③ the birth registered under the Births and Deaths Registration Act; ④ continuous residence in South Africa from birth to majority.

Requirement ③ is the key emphasised at the start of this instalment.

Part 3 — Chisuse: Constitutional Interpretation Is Preferable to a Declaration of Invalidity

Case file

⚠ The case name is easily miswritten

It is often written as "Minister of Home Affairs v Chisuse" — incorrect. The respondent is the Director-General, and the Chisuse party is the applicant, first. The correct form appears in the table above.

This case is methodologically elegant. The High Court had held the provision unconstitutional, declared it invalid, and referred the matter for confirmation. The Constitutional Court chose a different path: reading the provision in a way that is constitutional.

The rules this case established

1. s 2(1)(a) is a saving provision. The Court held that the provision's function is to preserve the status of those who had already acquired citizenship by birth before 1 January 2013, not to strip it retrospectively. On that reading the provision raises no constitutional problem.
2. Reading down to a constitutional meaning is preferable to a declaration of invalidity. Under section 39(2) of the Constitution, a court interpreting legislation must promote the spirit, purport and objects of the Bill of Rights. Where a provision admits of two interpretations, one constitutional and one not, the former should be adopted.
3. The four applicants declared South African citizens outright. The Court ordered the Director-General to register their births and issue identity documents. This is the application of substitution (see instalment 05) in the field of citizenship.

This judgment is also one of the pillars of South Africa's anti-statelessness jurisprudence. Section 28(1)(a) of the Constitution expressly guarantees a child's right to a name and a nationality; to push a person who has already acquired citizenship back into statelessness runs directly counter to that.

Part 4 — Centre for Child Law: An Unmarried Father May Register Alone

Case file

The factual background of this case is highly relatable for cross-border families: the father was a South African citizen, the mother a DRC national who was undocumented and unable to appear to register. Yet s 10 required an unmarried father registering a child's birth to obtain the mother's consent and to do so in her presence. The result: the child could not be registered.

The rules this case established

1. Treating fathers differently by marital status constitutes unfair discrimination. A married father may register alone, an unmarried father may not — a distinction based on marital status, contrary to the right to equality under section 9, and demeaning to the dignity of unmarried fathers (s 10).
2. The one truly harmed is the child. The Court emphasised section 28(2) of the Constitution: those most deeply affected are the children who cannot obtain identity documents. The effect of s 10 runs contrary to its stated protective purpose.
3. The whole provision severed; unmarried fathers may register independently. The Court did not read in or suspend, but severed s 10 from the law directly.

◆ Mogoeng CJ's dissent

The Chief Justice (Mathopo AJ concurring) would have held that ss 9–10 admit of a constitutional interpretation, their purpose being to protect children (against erroneous registration without the mother's consent), so that severing the whole provision was unnecessary.

The disagreement itself is worth noting: in Chisuse the Court chose constitutional interpretation, while here the majority chose severance. The distinction is broadly that in Chisuse the text could accommodate a constitutional reading, whereas in s 10 the discriminatory distinction was written into the skeleton of the provision and could not be read away.

Part 5 — Cirangashane: What to Do When Neither Parent Has Documents

Case file

This is the most recent High Court judgment cited in this series, addressing the last few dead ends in the birth-registration chain. The Court made declarations in respect of four situations:

The treatment of the four categories

1. Where one parent is a South African citizen or refugee and the other is undocumented. An official's refusal to register is unlawful.
2. Where both parents lack valid documents. Regs 8(3)(c)–(e) of the 2014 registration regulations are unconstitutional; "where available" is read in, suspended for 18 months. In other words: documents one cannot produce cannot be made a precondition of registration.
3. Late registration (beyond 30 days) of a child of foreign-national parents. The current system provides no corresponding route. During the suspension, regs 4–5 are extended to apply (i.e. the general late-registration procedure applies).
4. An abandoned person or orphan, now an adult, unable to produce their parents' documents. Interpreted under section 39(2) of the Constitution, registration is permitted on suitable proof.

The Court further ordered that officials may not make documents a precondition of receiving applications, and directed that the children in this case be registered within 60 days; costs on scale C (including two counsel).

⚠ A citation and currency warning

[2026] ZAWCHC 381 is a new judgment of July 2026, and no Juta report citation had appeared as at the verification date of this article. Note also the 18-month suspension period — before relying on this in a particular case, check whether the regulations have been amended.

In addition, another birth-registration judgment often referred to, Naki v Director-General: Home Affairs, has been anonymised on SAFLII to M.N and Others v Director General: Department of Home Affairs and Another [2018] ZAECGHC 90; [2018] 3 All SA 802 (ECG). Bear this in mind when searching.

Part 6 — A Checklist for Chinese Families Having Children in South Africa

What to do after the child is born

1. Register the birth within 30 days. The Births and Deaths Registration Act requires registration within 30 days of birth; beyond that the late-registration procedure applies, which for foreign-national parents was a dead end until Cirangashane.
2. Keep both parents' documents valid where possible. This is the single most trouble-reducing step. Where documents genuinely cannot be produced, Cirangashane's "where available" reading-in is an authority to invoke.
3. An unmarried father may still register alone. s 10 has been severed (Centre for Child Law [2021] ZACC 31); the mother's consent or presence is no longer required.
4. Keep all the birth-registration documents. Eighteen years later, when applying for naturalisation under s 4(3), "the birth was registered" is one of the four requirements — and the only one that cannot be remedied after the fact.
5. Keep evidence of continuous residence. s 4(3) requires continuous residence from birth to majority. School records, medical records, proof of residential address — retain them year by year.
6. Deal with the child's Chinese nationality separately. This article discusses South African law only. The acquisition and retention of Chinese nationality is governed by Chinese law, and the two sets of rules do not dovetail automatically — a point revisited in instalment 12.

◆ Practical takeaways for clients

• Birth registration and citizenship are two different things — do not conflate them. A foreigner's child born in South Africa should equally be registered; registration simply is not acquisition of citizenship.
• Registration is the key to that door eighteen years later. Of the four requirements of s 4(3), "the birth was registered" is the only one that cannot be remedied after the fact.
• When Home Affairs says "the regulations are not out yet," invoke Ali. An administrative body may not use its own inertia to block a statutory right.
• An unmarried father may now register alone. (Centre for Child Law [2021] ZACC 31; s 10 severed.)
• Incomplete parental documents are not an absolute bar to registration. (Cirangashane [2026] ZAWCHC 381: officials may not make documents a precondition of receiving applications.)
• The best interests of the child are a powerful argument in immigration cases. This series already has four judgments — Lu, A.K, Nandutu, Rayment — overturned because Home Affairs failed to assess the child's interests independently.

A child without a birth certificate is not automatically recognised simply because the child was in fact born. In the modern state, the very fact of existence also requires a document to prove it — and that document often turns on whether the parents had a valid visa at the time.

Sources

• Minister of Home Affairs and Another v Ali and Others (1289/17) [2018] ZASCA 169; 2019 (2) SA 396 (SCA) (30 November 2018)
• Chisuse and Others v Director-General, Department of Home Affairs and Another 2020 (6) SA 14 (CC); 2020 (10) BCLR 1173 (CC); [2020] ZACC 20 (22 July 2020)
• Centre for Child Law v Director General: Department of Home Affairs and Others 2022 (2) SA 131 (CC); 2022 (4) BCLR 478 (CC); [2021] ZACC 31 (22 September 2021)
• Cirangashane and Others v Director General of Home Affairs and Another (17367/2022) [2026] ZAWCHC 381 (29 July 2026) (Juta citation pending)
• M.N and Others v Director General: Department of Home Affairs and Another [2018] ZAECGHC 90; [2018] 3 All SA 802 (ECG) (the Naki case, now anonymised)
• South African Citizenship Act 88 of 1995 ss 2(1)(a), 2(1)(b), 4(3); Citizenship Amendment Act 17 of 2010
• Births and Deaths Registration Act 51 of 1992 ss 7, 9, 9(1A), 9(2), 10, 12; Births and Deaths Registration Regulations 2014 regs 4–5, 8(3)(c)–(e)
• Constitution of the Republic of South Africa, 1996, ss 9, 10, 20, 28(1)(a), 28(2), 39(2)

This article analyses judgments publicly published by South African courts, available in full on SAFLII (www.saflii.org); the parties' names appear on the face of the published judgments and are not client information of this firm. This is general legal information and academic discussion, does not constitute legal advice on any particular matter, and does not establish an attorney–client relationship. Case law may be overturned or distinguished by later decisions, and statutes may be amended; check the original text and the latest developments, or seek advice from a practising attorney on your own case, before relying on this. Verified as at 27 August 2026.

June Luna Immigration Attorneys Inc. — Cape Town, immigration and administrative law specialists. Visa refusal appeals (s 8(4) / s 8(6)); overstay and undesirable-person relief; detention and deportation; permanent residence and naturalisation; PAJA judicial review and mandamus.