I don't know my birth parents and Home Affairs keeps refusing me an ID. What can I do?

The long answer

If you don’t know your parents, then your adoptive parents (the family that adopted you) are in the place of your parents and are entitled to help you to apply for your ID. 

Did Home Affairs give any reason for refusing to give you an ID? You have the right to ask Home Affairs to give you and your adoptive parents written reasons for refusing. If they don’t, you and your adoptive parents can submit a written complaint to the manager at the Home Affairs office you went to, and if that doesn’t work, you can complain to the Home Affairs Head office.

As Home Affairs is a government department, they must carry out the requirements of the Constitution, which says that all administrative actions taken by the state, like granting or refusing an ID, must be procedurally fair, just and reasonable. The Promotion of Administrative Justice (PAJA) is the law that ensures that the state’s actions are fair, just and reasonable. 

If the problem is that you don’t have a birth certificate because your birth parents did not register your birth, Home Affairs will not give you an ID without a birth certificate. Your adoptive parents can help you apply for a birth certificate in what is called “late registration of birth” (LRB). LRB is a long and complicated procedure and you and your adoptive parents would be interviewed by a screening committee of Home Affairs. It does take a long time to get your interview with Home Affairs, because there is a big backlog of LRB applications at Home Affairs. 

These are the documents you and your adoptive parents would need to submit to Home for LRB:

• Application for an ID (Form B1-9);

• DHA 24/LRB (notice of birth);

• Children born at health facilities: DHA 24/PB (Proof of birth) 

• Supporting documentation like clinic card. If you have a baptismal certificate and school records (school reports and registers) that will also help support your application.

• DHA 288

• Your biometrics (ID-size photo and fingerprints);

• Fingerprints of parent/s (adoptive parents)

• Certified copy of ID/Passport/asylum permit of parent/s/adoptive parents

• Certified copy of ID of next of kin

Even though you and your adoptive parents may not be able to provide all these documents, in terms of the Promotion of Administrative Justice Act (PAJA), Home Affairs must consider your application in a fair, just and reasonable way.

In terms of writing your matric without an ID: 

The Constitutional Court ruled in 2011 that Section 29(1)(a) of the Constitution confers the right to basic education on every child living in South Africa, whether the child is a citizen or not. That means that you cannot be refused the chance to write matric because you don’t have an ID.

In 2019, Judge Selby Mbenenge in the Makhanda High Court ruled that the Eastern Cape Department of Education could not exclude or remove any child, even illegal foreign children, simply because the child did not have an ID, a birth certificate or other documentation.

The court was told that there were almost a million undocumented learners. 87% of these were South Africans, whose parents had been unable, for various reasons, to obtain documentation from Home Affairs.

Judge Mbenenge said the Constitution protected the right of all children to basic education and that no child should be excluded from an education.

Where a learner could not provide a birth certificate, the court ordered school principals to accept alternate proofs of identity such as an affidavit or sworn statement by the parent, caregiver or guardian.

This meant that in 2019 more than 13,000 undocumented students were able to write their matric.

So, you should not be excluded from writing your matric because of not having an ID card. But your school may not know that the 2019 court judgement changed the law. The law used to be, under Clause 15 of the Admission Policy for Ordinary Public Schools of 1998, that if a child couldn’t produce their birth certificate within a year, they could be excluded from school and from writing matric. The judge found Clause 15 unconstitutional. 

If your school refuses to allow you to write matric without an ID, or Home Affairs refuses to give you an ID, you and your adoptive parents could ask the following organisations for help:

• Legal Resources Centre: 

Email: info@lrc.org.za 

Tel: Cape Town: 021 481 3000

Tel: Johannesburg: 011 836 9831

• Lawyers for Human Rights: 

Email: info@lhr.org.za 

Tel Cape Town: 021 424 8561 

Tel Johannesburg Office and law clinic: 011 339 1960

Wishing you the best,
Athalie