Jane*was born in 2014 in Johannesburg. Her mother left her at the hospital after her birth. The hospital phoned the police when they realised Jane had been abandoned. Instead of handing the case over to social workers, the police found her mother and took baby Jane to her. When Jane was one month old, her mother left her with a neighbour and friend, Rita Solomons* who has since taken the responsibility of caring for Jane as if she was her own child. 

Jane is now nine years old and does not have a birth certificate. Knowing that it would be needed for school admission, Solomons tracked Jane’s biological mother down and persuaded her to help them apply for the birth certificate. Jane’s biological mother made the application at Home Affairs in November 2017, but disappeared without attending the interview that Home Affairs requires as part of the registration process. Her current whereabouts are unknown.  

Children like Jane often struggle to have their births registered, with Home Affairs insisting that the biological mother approach their offices to submit the necessary paperwork, make the application and attend the interview. If the biological mother is not available because the child has been abandoned, then Home Affairs requires a Children’s Court order confirming that the child has been abandoned.  

Solomons has approached three different social workers for assistance to obtain a court order but has not been assisted. While Jane has been able to attend school without a birth certificate, she can’t participate in extramural activities because the school requires a birth certificate. She really wants to do athletics as she loves running. 

Solomons needs financial support to provide for Jane’s basic needs. She was, until recently, unable to access the R500 Child Support Grant from the South African Social Security Agency (Sassa) because Jane does not have a birth certificate.

Jane is not alone.

The Children’s Institute at the University of Cape Town estimates that in 2017 at least 500,000 children in South Africa did not have birth certificates. At least 80% of them are South African citizens. By 2023 this number is likely to have increased due to reduced Home Affairs services during the 2020 Covid-19 lockdowns. Budget cuts are also affecting the ability of Home Affairs to render services to meet the demand. 

In December 2022, only 50,000 of these children were receiving a social grant through Sassa. Despite undocumented citizens, permanent residents or refugees having a clear entitlement in law to receive a social grant, there is a marked difference between the number of children who are potentially entitled to receive social grants and the number of children who are actually receiving them. 

Section 27(1)(c) of the Constitution says everyone has the right to have access to social security, including appropriate social assistance if they are unable to support themselves or their dependants. Section 28(1)(c) of the Constitution says, “Every child has the right to basic nutrition, shelter, basic health care services and social services.” 

The Social Assistance Act and its regulations provide the framework for realising the right to social assistance. In 2001, the regulations were amended to prevent people without IDs or birth certificates from qualifying for social grants. An NGO (Alliance for Children’s Entitlement to Social Security) challenged this amendment in court. 

Updated regulations

The result was that in 2008 the high court ordered the minister to put into effect amended regulations to ensure that children without birth certificates could qualify for social grants. Regulation 11(1) of the 2008 regulations specifically made provision for these cases. When the regulations were updated in May 2022, the numbering changed, and Regulation 11(1) became 13(1).    

Regulation 13(1) requires the caregiver applying for a grant for their child to submit an ID for themselves and a birth certificate for the child. To ensure that caregivers and children are not deprived of their right to a social grant, Regulation 13(1) includes an exception to the requirement of IDs and birth certificates. 

The exception says that if a caregiver does not have an ID, or the child does not have a birth certificate, Sassa must accept the application without the identity document or without the birth certificate. Sassa must then give the caregiver a Sassa affidavit to fill in and sign, and this will be accepted instead of the ID or birth certificate. In practice, at least one alternative document proving the caregiver or child’s identity will also be requested; for example, a Road to Health card.

Barriers that hinder access to grants

There are several barriers that continue to exist and hinder the ability of caregivers to access a grant using Regulation 13(1). 

First, some Sassa officials appear to be ignorant of the existence of the provision, with caregivers regularly being told by Sassa officials that they cannot apply without a birth certificate. Not only does this deny eligible children access to a grant, but it also creates a widespread misconception in communities that there is no use in even trying to apply for a grant without a birth certificate. 

This perception is exacerbated by some Sassa offices which instruct security guards to deny applicants without IDs or birth certificates access to the office, leaving them unable to even speak to a Sassa official. 

Second, Sassa officials often tell applicants that the grant will only be paid for a period of three months, within which time they must apply at Home Affairs for a birth certificate. Should they fail within three months to bring the birth certificate or proof of application for a birth certificate to Sassa, the grant will automatically be cancelled. 

This is what happened to Solomons and Jane, who briefly received the grant in 2019, only to have it cancelled after three months. Until June 2020, Sassa applied a three-month cancellation practice in relation to grants in terms of Regulation 13(1). This practice was not only unlawful, but it also resulted in many eligible children having their grants cancelled without any hope of having them reinstated. 

Despite this practice no longer being applied, Sassa officials are sometimes unaware of this and continue to inform caregivers that the grant will only last for three months. Some officials also discourage applicants from applying by saying that it is not worth the effort because it will only last for three months. 

Third, some Sassa officials wrongly take the stance that caregivers can only apply for the grant if they can, at the point of application, provide Sassa with proof that they have applied for a birth certificate at Home Affairs. Despite this not being Sassa’s official policy, and proof of application from Home Affairs not being a requirement for a grant application to be processed, this misconception continues to impede eligible children’s access to the grant. 

Sometimes, despite parents or caregivers providing this document to show that they have applied at Home Affairs, their grants may still be cancelled as the officials fail to tick the box on the computerised application form to show that the caregiver has submitted proof from Home Affairs. Solomons did give this document to Sassa when she first applied for a grant, but her grant was still cancelled after three months. 

Finally, until now, public information on applications in terms of Regulation 13(1) was practically non-existent, which means that caregivers with unregistered children struggled to know what steps they must take to access the grant. 

Sassa’s official website contained no information on the application process for unregistered children, and the information is not displayed at Sassa offices where it can be available to affected caregivers and their children. This made it difficult for caregivers of unregistered children to assert their rights as they didn’t have access to information to help them understand Regulation 13(1). 

To address this lack of public information, the Children’s Institute and the Legal Resources Centre, with the support of Sassa, have developed a guide to assist parents and caregivers without Home Affairs documentation to understand the grant application process and navigate the barriers to access. The guide seeks to ensure that information is more publicly available and that parents or caregivers who are denied access to the grant for their unregistered children, can understand the law and assert their rights. 

Download the guide here from the Children’s Institute website, or here from the Legal Resources Centre website. 

Life-long adverse consequences

Denying children, and in particular vulnerable unregistered children, access to a social grant can negatively affect the remainder of the child’s life. Studies conclusively show that access to the Child Support Grant improves the educational, health and food security outcomes for children.

Children without birth certificates are already a vulnerable and marginalised group in society. Children who are more likely to struggle to get a birth certificate include children born at home in rural areas, orphaned or abandoned children in the care of relatives or in state care, children in the care of their unmarried fathers after their mother has died or abandoned the family, children of young mothers who do not yet have their own identity documents, children whose mother has migrated to another province to seek employment, and children whose mother’s ID has been duplicated by an act of identity theft or by a Home Affairs clerical error. The caregivers of these children face significant challenges navigating the ‘late registration of birth’ process and as a result, many children go for years without obtaining a birth certificate. 

The exception in Regulation 13(1) was specifically designed to assist these children with social grants, while they wait for their birth certificates to be issued.  

Jane was only assisted with getting her grant after Solomons approached the Children’s Institute for assistance in 2022. Despite letters to Sassa officials and visits to the local Sassa office, they were unable to get her grant reinstated. The Children’s Institute and the Legal Resources Centre finally had to threaten legal action before the grant was reinstated and Solomons was awarded back pay for the three years since her grant was cancelled. 

There are many more children like Jane who do not have birth certificates and need a social grant for their basic needs such as food, clothes and transport. Most of their caregivers do not know that the law says they can apply for a social grant, and most do not have access to legal recourse. The purpose of the guide is to help the many other children, who like Jane, struggle to realise their right to social assistance. DM/MC 

*Jane and Rita Solomons are not their real names. 

Cecile van Schalkwyk is an attorney at the Legal Resources Centre, Mbonisi Nyathi is a researcher and Paula Proudlock is the programme manager at the Children’s Institute, University of Cape Town.