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Mother challenges home affairs

Source: Mail & Guardian, 01/10/2019


We were not properly cared for. We were frequently physically
disciplined,” she says. “I lived in fear; I suffered significant
emotional and psychological distress.”
Unable to tolerate the abuse, she started siphoning off some of
the money she earned from selling detergents to fundraise for the
orphanage. When she had enough, she took a bus to the border and a
customs officer helped her cross over. She says she knew it was
illegal.
Chantel was known by a different name at the orphanage but she
changed it when she arrived “so that I could not be traced and
sent back”.
In many ways her life improved in South Africa. She headed to
Durban where she met a South African and the couple started life
together in the Durban North suburb of Red Hill. They had two
children, one born in 2007 and the other in 2014.
When it was time for her firstborn child to go to school, Chantel
realised the pain of her own statelessness. Because Chantel’s
partner is South African, both of her children are legitimately
South African, but because Chantel had no documentation at all,
her children were never issued with birth certificates. No school
in South Africa will enrol a child without a birth certificate.
The couple made several attempts to have the children’s births
registered with the department of home affairs â€` providing clinic
notes and records from the local hospitals where they were born â€`
but they were always turned away. And the educational authorities
were not willing to help.
By 2016, Chantel’s oldest child was already eight years old and
had not yet been enrolled at school. The couple turned to the
Legal Resources Centre, where advocate Stuart Humphrey, acting pro
bono, agreed to draft an urgent court application.
The first prize was to get the child enrolled without having to
produce a birth certificate. Education authorities, acting in the
child’s best interests, backed down.
KwaZulu-Natal chief education specialist Busisiwe Gcabashe said,
in an affidavit: “We undertook to enrol the child at school on
condition that … [the child’s parents] submit the birth
certificate once it is available. This was because we appreciate
and respect the child’s constitutional rights to education. And
that [the child] is a South African citizen by birth.” Gcabashe
said, however, that the entire matter was largely dependent on the
attitude of the department of home affairs.
Chantel’s appeal to this department was that it issue the children
with birth certificates and issue her with a visa, or grant her
permanent residence, to formalise her status in South Africa.
To this end, Chantel’s lawyers are attacking the Regulations to
the Births and Deaths Registration Act, which makes no provision
for the registration of a birth where one of the parents does not
have any proof of identification.
Part of the lawyers’ research has involved tracking Chantel’s
early history and the name she no longer uses. But neither the
Eswatini authorities, her lawyers or the department of home
affairs have been able to unearth any records for Chantel under
any of her names: not the one she hasn’t used since she was a
child in Manzini, nor her current name.
She is stateless and her children are stateless. To make matters
worse, Chantel’s common-law husband died last year. While her
children are now both attending school, without their birth
certificates, this situation cannot carry on indefinitely.
Chantel’s is one of the cases that will be argued in the Durban
high court later this month, but will in all likelihood have to be
decided by the Constitutional Court.
The department of home affairs, however, has not been swayed.
Richard Sikakane, director of travel documents and citizenship at
the department, said it “strongly opposes” Chantel’s application
and that it would be unlawful for a court to direct the department
to bypass legislative prescripts for an “illegal immigrant” who
lied about her name.
“We disagree that she is stateless. I seriously dispute that any
person can be born stateless,” Sikakane said. “She admits that she
was born in Swaziland [Eswatini]. Her identity can be traced and
affidavits can be obtained from family members there and the
process of establishing her identity can start there.”
But Chantel is not able to travel to Eswatini because she has no
passport or ID.
Sikakane says issuing IDs and granting citizenship to unidentified
immigrants is not only wrong but would compromise the country’s
security. “There are no shortcuts. Holding the government at
ransom to break the law cannot be condoned,” he said.
A recent report compiled by the Scalabrini Centre, which is based
in Cape Town and provides services to migrants and refugees,
documented the plight of 325 foreign-born children in South
Africa. Most of these children are undocumented and they face the
threat of statelessness once they turn 18.
Among those interviewed were two sisters, thought to have come to
South Africa from Kenya with their mother. They were discovered
living in a car and taken to a child and youth care centre. Their
mother then disappeared. The Kenyan authorities do not recognise
these girls as Kenyan nationals and the South Africa authorities
don’t recognise them as South African.
The scalabrini Centre’s advocacy officer, Lotte Manicom, says
urgent measures, including law reform, are needed to counter this
situation.
“Present immigration laws and regulations prevent the opportunity
for these children to document themselves,” she said.
“It is foreseen that many of the children will have no choice but
to return to their country of origin (if they can) once their
placement order is no longer valid or extendable.”
She recommended that the department of home affairs roll out a
“special dispensation permit” to allow these children to remain in
South Africa and, in certain instances, that citizenship be
granted to them.
In acknowledging the vital need for an ID, Manicom added that the
documented children in question were all aged between 11 and 18,
that they originated from 15 different African countries and that
some were fleeing war and persecution.
“A variety of rights flow from an identity document,” Manicom
noted. “It establishes a nationality, an identity, and an ability
to function in a formal society. For a child, an identification
document is crucial in their ability to access their most basic
rights, and to plan a meaningful future.”
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