Births and Deaths Registration Act Regulations: Departmental briefing

Meeting report

Births and Deaths Registration Amendment Act, 2010: Regulations: Department of Home Affairs briefing
Mr Vusi Mkhize, Deputy Director-General: Civic Services, Department of Home Affairs, began by relaying an apology from the Director-General, Mr Mkuseli Apleni.

He explained that the purpose of the presentation was to provide the Committee with updated information related to the implementation of the Births and Deaths Registration Amendment Act, 2010 (the Act) and the regulations under this Act. The Births and Deaths Registration Amendment Act, 2010 was a fundamental piece of legislation that had a significant impact on state and personal security. The Act was assented to by the President on 3 December 2010.

The regulations were presented to the then Minister on 21 March 2012 and subsequently published in the Gazette for public comments on 15 May 2012. All comments received were considered and accordingly incorporated into the final draft f the Regulations. Mr Mkhize said that he would not go through the Act or Regulations in detail. The Department of Home Affairs (DHA or the Department)still needed to consult other relevant stakeholders such as traditional leaders, so the final regulations still needed to be presented to the Minister for approval. He stressed that there was a need to craft and balance the Regulations well, because there was a need to correct some imbalances.

Training on the Act and Regulations was focused on the officials of the Department but plans were being made to train other stakeholders, who included Councillors, religious and traditional leaders, as well as medical practitioners. In total, 553 officials had been trained nationally. A provincial breakdown was given; Gauteng had the highest number of trainees at 92, with the Eastern Cape having the lowest number of trainees at 37. Other provinces included Limpopo with 71 trainees, Western Cape with 88 and KwaZulu Natal with 81 trainees.

Mr Mkhize stated that the final regulations would be presented to the Committee after the Minister gives his approval.

Discussion
The Chairperson thanked the Department for the presentation and reiterated to the Members that the presentation by the Department was only intended to give the Committee an indication of the progress towards implementing the regulations. However, she believed that the Regulations should have been first presented to Parliament for consideration, before being tabled to the Minister.

Mr M Mnqasela (DA) thanked the Department for the presentation, but felt that the process was taking too long, and that was frustrating. He asked that the Department give the Committee a realistic date for implementation.

The Chairperson said that it was not up to the Department to decide on the implementation date, as the Committee needed to give the deadlines. The Committee had given the Department too much leeway already.

Mr Mkhize responded and accepted that the Department had taken a long time to implement the legislation. He apologised for that, and said bureaucracy should not delay implementation. As for the timeframes, he said the Department could not give a response on the implementation date, as it still had to present the legislation to the Minister, and only after that could the timeframes be assessed.

Mr Mnqasela noted that the new unabridged certificates did not make provision, on the certificate, for naming of couples who were not married. He asked what would happen in the case of one spouse dying in the presence of another. He also noted that the registrations of births could only be done by the mother, and that was problematic, for the father may wish to play a part in registering the child, particularly if the mother was an irresponsible and negligent parent.

Mr Mkhize pointed out that the purpose of the unabridged certificates was for the people’s convenience. Fathers (who were married to the mother) and grandmothers could register children, but he pointed out that reasons had to be provided why the mother of the child could not deal with the registration. Documented proof therefore needed to be provided, and this was to curb illegal activities such as child trafficking. Births needed to be registered within 30 days after birth, and mothers needed to be encouraged to stick to these deadlines.

Advocate Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, added that  both the mother and the father, if they were married, could register a birth, but if they were not married, only the mother could register a birth. If both parents were deceased or not available, the next of kin could register the birth. Abandoned children were to be registered by social workers.

Mr Mnqasela then asked what would qualify a person as an informant in the case of death, and if there were specific requirements.

Adv Erasmus responded that undertakers were currently being regulated so that they could act as informants. However they needed to have a letter from the family. The person who was present and who witnessed the death could also be an informant. An informant needed to be over the age of 16 years and needed to be of sound mind.

Mr G McIntosh (COPE) referred to the Marikana incident of 2012, where about 40 miners were killed by police officers, after a sangoma had given them potions which allegedly would protect them from bullets and make them powerful. He asked about the seriousness of the Department to include witchcraft as a cause of death.

Mr Mkhize responded to Mr McIntosh that during a conference about civil registration, witchcraft was raised as an issue of all African states, being a cultural matter that could not be avoided. He agreed that the shortage of medical practitioners, especially in rural areas, made it more difficult to deal with matters of death. In most cases no common understanding was reached between traditional healing practices and western philosophies. However, there was agreement that a medical practitioner needed to have the final say in determining cause of death. This was why it was important that the Department forge partnerships with traditional leaders and traditional healers. However, in South Africa, witchcraft had not been recognised as a cause of death.

Mr M De Freitas (DA) said legislation was biased to the mother (for understandable reasons), but he agreed with Mr Mnqasela’s point, and said that there could be some instances where the mother was active in the child’s life but posed a threat or danger to the security and life of the child, and he wondered how the DHA would deal with such cases.

Mr Mnqasela asked how the Department would know that the person was a next of kin.

Advocate Erasmus responded and said the next of kin needed to provide some proof that they were indeed relatives. If the mother was a danger to the child, the father needed to prove that she was indeed an unfit mother, through the relevant processes such as court orders. The Court was the upper guardian of all minors.

Mr Mkhize added that it was not part of the Department’s mandate to allocate custody and the Department could only register births and deaths.

Ms D Mathebe (ANC) raised a concern that registrations of birth were a huge challenge in rural areas, mostly because of a lack of resources and asked what interventions the DHA would make to improve this.

Ms G Bothman (ANC) asked whether there was a fine for late registration of births.

Mr Mkhize said the DHA was working together with the Department of Health and the Department of Social Development to tackle births in rural areas. New parents were therefore encouraged to register their children during the critical period of immunisations and the social grant was highlighted as an incentive. The Department also had its own outreach programmes aimed at targeting rural areas. The Department was also working with traditional leaders and community members to drive the notion that registration should be a natural process for every new parent. He added that to charge fines for late registration would be self-defeating, especially in poor communities. Instead incentives were highlighted, as an attempt to fight poverty -for example, through the social grant.

The Chairperson asked how the Department handled cases where the mother was a foreigner and the father was a South African citizen, and asked who then must register the child.

Advocate Zukiswa Adams, Senior Legal Administrative Officer, Department of Home Affairs responded that the mother would still register the birth, but the father needed to be present to acknowledge paternity.

Mr Mkhize added that if the mother was not on the South African population list, the child needed to be registered under the details of the father, with the mother present.

The Chairperson asked when the Department would be ready to present its timeline for implementation.

Mr Mkhize requested that the Department be called back together with the Minister so that the Committee could have a clearer sense on timelines and dates. 

Mr De Freitas said specific dates were not necessary, but timelines were crucial.

Mr Mnqasela repeated that the onus to set implementation dates was on the legislator, and because that this process was not followed during the processing of the Bill, the Minister needed to be called in to explain the timeframes.

The Chairperson agreed and said the Minister would be invited to discuss the matter.

Adoption of Committee Minutes
Committee Minutes from meetings on 19 March 2013 and 26 March 2013 were adopted without amendments.

The meeting was adjourned.