The new unabridged birth certificate requirement for children travelling to and from South Africa was supposed to have come into effect on 1 October 2014 – virtually rendering international passports useless for any person under the age of 18.  The Minister of Home Affairs, Malusi Gigaba, however announced this week that this requirement will now only come into effect on 1 June 2015.

The Department of Home was approaching a deadline, in two weeks time, which presented hundreds of South African families effectively with a travel ban for their minor children, in circumstances where the Department of Home Affairs was unable to timeously issue unabridged birth certificates to children born before 2013 (who were all issued with "abridged", short form, birth certificates). We have been advised that the current delay is somewhere between 6 – 8 months.

For a person travelling with a child, the Regulations require – as from 1 June 2015 – that the person must be in possession of an unabridged birth certificate for that child, and a consent affidavit from the parent or parents of the child authorising the person to travel with the child. This is in line with South Africa’s international obligation to curb child trafficking and also in line with the provisions of our Childrens’ Act, 2005 (Act No. 38 of 2005). The purpose of the amendment is to assist in curbing the abduction and kidnapping of children, sometimes even by one of their parents.

The Regulation 12, which bears reference, states verbatim as follows:  

"(a)      Where parents are travelling with a child, such parents must produce an unabridged birth certificate of the child reflecting the particulars of the parents of the child.

(b)       In the case of one parent travelling with a child, he or she must produce an unabridged birth certificate and—

(i)      consent in the form of an affidavit from the other parent registered as a parent on the birth certificate of the child authorising him or her to enter into or depart from the Republic with the child he or she is travelling with;

(ii)      a court order granting full parental responsibilities and rights or legal guardianship in respect of the child, if he or she is the parent or legal guardian of the child; or

(iii)     where applicable, a death certificate of the other parent registered as a parent of the child on the birth certificate;

Provided that the Director-General may, where the parents of the child are both deceased and the child is travelling with a relative or another person related to him or her or his or her parents, approve such a person to enter into or depart from the Republic with such a child.

(c)       Where a person is travelling with a child who is not his or her biological child, he or she must produce—

(i)      a copy of the unabridged birth certificate of the child;

(ii)      an affidavit from the parents or legal guardian of the child confirming that he or she has permission to travel with the child;

(iii)     copies of the identity documents or passports of the parents or legal guardian of the child; and

(iv)    the contact details of the parents or legal guardian of the child,

Provided that the Director-General may, where the parents of the child are both deceased and the child is travelling with a relative or another person related to him or her or his or her parents, approve such a person to enter into or depart from the Republic with such a child.

(d)       Any unaccompanied minor shall produce to the immigration officer—

(i)      proof of consent from one of or both his or her parents or legal guardian, as the case may be, in the form of a letter or affidavit for the child to travel into or depart from the Republic: Provided that in the case where one parent provides proof of consent, that parent must also provide a copy of a court order issued to him or her in terms of which he or she has been granted full parental responsibilities and rights in respect of the child;

(ii)      a letter from the person who is to receive the child in the Republic, containing his or her residential address and contact details in the Republic where the child will be residing;

(iii)     a copy of the identity document or valid passport and visa or permanent residence permit of the person who is to receive the child in the Republic; and

(iv)    the contact details of the parents or legal guardian of the child."

This Regulation has been presented in the press as a public relations disaster for South Africa's tourism industry, in particular, because most of our tourists will depart for South Africa armed only with their children's passports. South Africa's main tourist markets do not require our visitors to obtain a visa before entering the country, they simply receive the visa at our ports of entry. The likelihood therefore exists that the unabridged birth certificate requirement will go completely unnoticed by those travelling long distance with children. At best they will be denied boarding when their journey has reached a point of no return, or – at worst – their children will be denied entry into South Africa and be put on the first plane straight back home. 

Mr Gigaba has been quoted as saying that "the new regulations are not too onerous and parents can use their country's equivalent of the documents while travelling". In fact, he has encouraged foreigners travelling to South Africa to attend at our foreign offices abroad should they be concerned about their children's travel documents. He is, of course, presuming that they know about the changes to our immigration legislation in between the trials and tribulations of parenthood.

Of further concern to South African parents, is what happens when they are estranged from each other, to the extent that they are no longer in contact? The unabridged birth certificate identifies who both parents are, and the law from 1 June 2015 requires both parents to comply with Regulation 12. As things will stand, therefore, the child will no longer be able to travel into or out of South Africa, until that second parent is located, and gives his/her consent, alternatively until a court orders that he/she is no longer fit to be a guardian of the child.

NIKI GERNEKE, Partner

For more information please contact partner, Niki Gerneke, on +27 (0) 21 419 6495 and gerneke@wylie.co.za.  Although Niki is based in Cape Town, she has a competent team of facilitators situated at the Shepstone & Wylie offices in Durban and Johannesburg to ensure that we are able to provide our clients with an efficient service.