No papers, no schooling, no future

A Durban mother of two is waging a Constitutional Court battle for the recognition of her family, but the Department of Home Affairs won’t hear of it.

Chantel* was only 15 when she hopped the Swaziland/South African border in early 2007. She says she lived her whole life in an orphanage in Manzini, never knew her biological parents and never had sight of her own birth certificate. Abuse was rife.

“The conditions were unbearable. 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 fund raise 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.

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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.

Stateless with no papers

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 – providing clinic notes and records from the local hospitals where they were born – but they were always turned away. And the educational authorities were not willing to help. 

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By 2016, Chantel’s elder child was already eight years old and had not yet been enrolled at school. The couple turned to the Legal Resources Centre where local 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, in order 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 form of proof of identification.

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Chantel’s position is precarious.

Part of the lawyers’ research has involved tracking Chantel’s early history and the name she no longer uses. But neither the Swaziland authorities, her lawyers or the Department of Home Affairs have been able to unearth any records for Chantel under any of her names: neither 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 more dire, 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.

‘Risks’ to South Africa’s security  

The Department of Home Affairs, however, has not been swayed. Richard Sikakane, director of travel documents and citizenship there, says the department “strongly opposes” Chantel’s application and it would be unlawful for a court to direct that the department 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,” he says. “She admits that she was born in Swaziland. 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 Swaziland because she has no passport or identity document.

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Sikakane says issuing identity documents 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 says.

A recent report compiled by the Scalabrini Centre of Cape Town, which 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.

Children caught in a double-bind

The report says urgent measures, including law reform, were needed to counter this situation. “Present immigration laws and regulations prevent the opportunity for these children to document themselves,” it says. “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.”

The report recommends 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 identity document, it adds 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],” the report says. “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.”

*Surname withheld to protect the identity of her children.

This article was updated on 21 August.

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