IDENTITY CRISIS: UCT Children’s Institute and Home Affairs clash in court over late birth registration backlog

On Wednesday, 10 June, the UCT Children’s Institute and a group of South African parents, represented by the Legal Resources Centre, were in the Western Cape High Court fighting for a structural interdict that would compel the Department of Home Affairs to develop a comprehensive, transparent plan to address the late registration of birth applications backlog .

At the hearing, presided over by Judge Ncumisa Mayosi, the legal team representing the Children’s Institute argued that there were systemic problems at Home Affairs contributing to a large and growing backlog of undecided late registration of birth applications, which are requests for birth certificates lodged more than 30 days after a child’s birth.

According to the institute, yearslong delays in accessing birth registration due to the backlog were a massive violation of children’s constitutional rights. Without a birth certificate, young people were denied recognition of their existence and identity, and locked out of accessing other rights such as basic education and further education, social services, healthcare and social security.

The Department of Home Affairs offices in Motherwell, Gqeberha. (Photo: Joseph Chirume) “We are dealing with the most vulnerable people in our society: unrecognised children,” said advocate Daniel Linde, representing the Children’s Institute and other applicants.

The Department of Home Affairs has denied that there is a systemic backlog of late registration of birth applications, claiming that the number of undecided applications has been reduced significantly, removing the justification for judicial intervention.

“We emphasise that the legislative scheme allows for the late registration of births, and [the number of applications] will never be zero, and this must be accepted. Secondly, the actual number is not static; it is a moving target,” said advocate Adiel Nacerodien, representing the Department of Home Affairs.

“The numbers in this context of the [application for] structural relief are irrelevant for the consideration of the court, because the point is that there has been no systematic failure in the sense of an exponential increase.”

Is the backlog systemic?

When the Children’s Institute launched litigation against the department in December 2024, it was joined by the caregivers of 19 children, as well as one adult, whose late registration of birth applications were undecided. These additional applicants had been waiting between two and seven years for documentation.

The applicants were seeking a court order compelling the department to:

Decide the applications of the 19 children and one adult involved in the court case, and issue their birth certificates if approved;

Diagnose the “systemic inefficiencies” that had resulted in the years-long backlog for registration of birth applications; and

Draft a plan to ensure that present and future applications are decided without long delays.

Linde noted that as a result of the litigation, the individuals involved were prioritised by the Department of Home Affairs, with almost all receiving birth certificates before the case went to court.

However, he added, their experiences of applying for documentation at Home Affairs were indicative of the systemic problems hindering the late registration of births process, including:

A lack of communication between Home Affairs offices in different provinces;

Long waits for the processing of supporting documents;

Delays in the interview procedure; and

Instructions to return to their provinces of birth to file applications.

In one case, an individual who applied for her child’s birth certificate in 2023 and did not receive a request to come for an interview followed up at the Home Affairs office, only to be told there were still applicants from 2021 waiting to be called, said Linde.

The Department of Home Affairs noted in its heads of argument that the relief sought for the individual applicants was moot, as it had issued birth certificates for all but one of them.

It added, “The fact that there have been delays in these limited instances does not ... meet the threshold for the intrusive level of structural relief that the applicants contend for. Structural relief of that nature should be exercised as a matter of last resort, not first.”

The department stated that it had been implementing “effective measures” to address and reduce the backlog.

Linde argued that it was an “absurd notion” that the individual applicants in the Children’s Institute’s case were “just the 100% unlucky few”.

What is the size of the backlog?

In May 2023, the then minister of home affairs, Dr Aaron Motsoaledi, told Parliament that a backlog of more than 250,000 undecided late registration of birth applications had accumulated between 2018 and 2022.

The former home affairs minister Dr Aaron Motsoaledi. (Photo: Brenton Geach / Gallo Images) The Children’s Institute has argued that the Department of Home Affairs has no plan to address the “massive and growing”…