I’m a foreign national with a child out of wedlock with a South African. My name isn’t on the birth certificate, how can I add it and change the child’s surname to mine?

The long answer

Let’s start with 1) adding your name to the child’s birth certificate: 

An article by Lawyers for Human rights on 29 September 2021 says that if an unmarried father wants his details to be added in a birth certificate that already exists, he must follow the process set out in Section 11(4) of the Births and Deaths Registration Act (BDRA): the father must apply to the Department of Home Affairs with the mother's permission in order for the information to be included in the birth certificate. Following examination of the application, the Department will update the child's birth registration by noting that the applicant acknowledged being the child's father and by adding the required information about the individual in the child's birth registration.

LHR explains that unmarried fathers who, for whatever reason, did not take part in the initial notification of birth but want to be recognised as fathers are to be accommodated by these regulations. According to them, an unmarried father can still request recognition on the child's official birth certificate registration and an update to the National Population Register to reflect this change after an official birth certificate has been issued by the Director-General of Home Affairs.

They go on to state that if the mother refuses to consent, the unmarried father may still seek relief from the High Court.

As for 2) Changing the child’s surname to yours:

Advocate Muhammad Abduroaf explains that the father of a child born out of wedlock may petition the Director-General of the Department of Home Affairs to change the minor child's last name in accordance with section 25(2) of the Births and Deaths Registration Act. Both parents must approve the application if the mother is still living. However, in the event that the mother objects, the father would need to petition the High Court to waive the mother's permission and allow the Director-General to act without the mother's approval.

LHR says that the original surname may be changed by the department's director-general upon submission of a valid and convincing explanation for the intended change. However, LRH warns that it is crucial to keep in mind that birth registration is about the child and about advancing the Constitution's section 28(1)(a), which declares that the child's best interests come first. They continue by saying that the father must be acting in good faith when submitting this application because a change of surname could have devastating consequences for the child.

LHR agrees that if a dispute arises with the mother, the father can seek relief from the High Court, which is “the upper guardian for children”.

In a 2017 Article, News24 lists the documents required to alter your child's last name:

• child’s birth certificate

• the ID or passport or birth certificate of the person applying for the child’s surname to be changed

• an affidavit giving reasons for the change

• written consent from the mother, stepfather or guardian father that the child can change his name to the father’s

• an affidavit from the father acknowledging that the child is his and that the child was born out of wedlock

• applicant’s contact details – name, address and telephone number

• completed Home Affairs form B1-193  

• R70 fee (this amount may have changed over the last eight years)

According to News24, the process takes four to six weeks to complete, and the updated birth certificate will bear both the original and new surnames. The old last name won't be removed.

You may wish to ask for further advice from organisations like Lawyers for Human Rights, Legal Resources Centre or the Centre for Child Law. 

These are their contact details:

• Lawyers for Human Rights

Email: info@lhr.org.za

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

Email: info@lrc.org.za

Johannesburg: 011 836 9831

Cape Town: 021 481 3000

Durban: 031 301 7572

• Centre for Child Law

Email: centreforchildlaw@up.ac.za

Tel: 012 4204502

Wishing you the best,
Athalie