Departing and Entering into South Africa with a Minor Child: A Practical Guide

On 26 May 2014, the Immigration Amendment Act, Act 3 of 2007 amended the Immigration Act, Act 13 of 2002 (“the Immigration Act”) which caused the Immigration Regulations, 2014 (“Immigration Regulations”) to come into effect.

The Department of Home Affairs released a statement on 16 September 2014 that they would postpone the implementation of certain sub-regulations surrounding the documentation required to travel with a minor child. These sub-regulations pertain to two particular requirements being the unabridged birth certificate and written requirements required for the travelling outside of the Republic of South Africa with minor children.

This article deals with the documentation that is required to be produced at all ports of South African entry or exit when a person, whether a parent or a third party, wishes to leave or enter into South Africa and they are travelling with a minor child.

1) Section 9 of the Immigration Act

Section 9 of the Immigration Act requires all people entering or leaving the Republic of South Africa to be in possession of a valid passport. More specifically, section 9(3)(a) of the Immigration Act, requires a minor child to also produce his or her own valid passport.

2) Regulation 6 of Immigration Regulations

From 1 June 2015, Regulation 6(12) of the Immigration Regulations comes into effect. This regulation will apply to all persons, whether a foreigner or a South African citizen, travelling with minor children into or out of the Republic of South Africa. This regulation will also apply to travelling unaccompanied minor children and will be regulated and monitored by South African Immigration Officials.

Therefore the necessary additional documentation and consent, in terms of the Immigration Regulations, should be produced for all minor children leaving or entering into the Republic of South Africa.

If such additional documentation is not produced, or the information provided is false, the immigration officer will not allow the minor child to depart from or enter the Republic of South Africa. This is in terms of Section 9(3) of the Immigration Act and Regulation 6 of the Immigration Regulations.

Regulation 6(12) of the Immigration Regulations stipulates the following:

a) A Minor Child that is travelling with both parents

In terms of Regulation 6(12)(a), if both parents are travelling with a minor child to a destination outside the Republic of South Africa or wish to enter into South Africa, then the parents require to produce the minor child’s unabridged birth certificate which clearly specifies the name and the identity number of both parents and the minor child.

If a minor child has been adopted and the name change has not been effected at the Department of Home Affairs, as per the adoption order, then on departure and entry in to the Republic of South Africa the adoption order is required to be produced in addition to the unabridged birth certificate. In terms of the Children’s Act, Act 38 of 2005 (“the Children’s Act”), an adoption terminates the biological parents parental responsibilities and rights over the minor child, and the adoptive parents become the new parents of the minor child with full parental responsibilities and rights over the minor child.

b) A Minor Child that is travelling with only one parent

If only one of the parents is travelling with the minor child, Regulation 6(12)(b) stipulates that the parent is required to produce only one of the following documents with an unabridged birth certificate of the minor child:

  • An affidavit from the non-travelling parent, whose name appears on the unabridged birth certificate, stipulating under oath that
    • he or she is providing his or her consent for the removal of the minor child from, or entry into, the Republic of South Africa; and
    • he or she authorises the other parent to remove the minor child from, or entry into, the Republic of South Africa with the minor child.
  • A Court Order granting the parent, who is entering or departing from the Republic of South Africa, with full parental responsibilities and rights over the minor child or legal guardianship in respect of the minor child.
  • A death certificate of the deceased parent whose particulars are stipulated on the minor child’s unabridged birth certificate.

If the minor child was registered with the name of only one parent at birth (i.e. the unabridged birth certificate only has the name of one parent on the birth certificate), then the unabridged birth certificate is required to be produced at all exit and entry points. However, the consent of the non-existing parent is obviously not required.

c) A Minor Child who is travelling with a relative and both parents are deceased

If both parents are deceased and the minor child is travelling with a relative or a third party, then the approval of the Director General of the Department of Home Affairs is required to enter or depart from the Republic of South Africa. It is assumed that the unabridged birth certificate is still required to be produced at all entry and exit points as well.

d) A Minor child who is travelling with a person who is not their parent

If a third party who is travelling with the minor child is not the minor child’s parent or legal guardian in terms of a Court Order, Regulation 6(12)(c) stipulates that the third party requires to produce all of following documentation:

  • A copy of the unabridged birth certificate of the minor child; and
  • An affidavit from both parents, whose names appear on the unabridged birth certificate, stipulating under oath that they are providing their consent that the third party has permission to travel with the minor child; and
  • Copies of the identity documents or passports of both parents or legal guardians of the minor child; and
  • Documents containing the full contact details of both parents, or the legal guardians, of the minor child.

e) An Unaccompanied Minor

In terms of Regulation 6(12)(d) the unaccompanied minor requires to produce all of the following documentation:

  • Proof of consent from either or both his or her parents or legal guardian, as the case may be, in the form of a letter or affidavit for the minor child to travel into or depart from the Republic of South Africa. If only one parent has provided proof of consent, that parent must also provide a copy of a Court Order issued to him or her in terms of which he or she has been granted full parental responsibilities and rights in respect of the minor child;
  • If the minor child is entering into the Republic of South Africa, a letter from the person who is to receive the minor child containing his or her residential address and contact details in the Republic where the minor child will be residing;
  • A copy of the identity document or valid passport and visa or permanent residence permit of the person who is to receive the minor child in the Republic; and
  • Documents containing to the full contact details of the parents or legal guardian of the minor child.

2.1) Meaning of Minor Child

A minor child is any person under the age of 18 years in terms of Section 1 of the Children’s Act.

2.2) Meaning of Unaccompanied Minor

An unaccompanied minor is a minor child under the age of 18 years old and is travelling alone (as defined in Regulation 1 of the Immigration Regulations).

2.3) Meaning of Unabridged Birth Certificate

In South Africa, an unabridged birth certificate is a certificate or document which clearly stipulates the full name of the minor child with his or her identity number, as well as the names of both parents with their identity numbers.

2.4) Meaning of Unabridged Birth Certificate for Foreigners

A foreigner travelling with a minor child, requires a legal document similar to an unabridged birth certificate which clearly shows the identity of the minor child, the mother and the father of the minor child.

If the foreign passport clearly identifies the minor child, the identity of the mother and the father, the passport will be considered complying with the Immigration Regulations and will be accepted by the immigration officer in terms of the Immigration Regulations. This explanation surrounding documentation relating to a foreigners travelling with a minor child was stated by the Minister of Home Affairs in his Overview Statement made at parliament on 23 April 2015.

2.5) Meaning of the word Affidavit and the word copies

a) Certified copies

Regulation 6(12)(a) and 6(12)(b) does not state that a copy of the unabridged birth certificate requires to be produced. It is assumed that the original unabridged birth certificate must be produced at all South African departure or entry points.

In terms of Regulation 6(12)(c) and Regulation 6(12)(d), the words “a copy” are used and therefore a copy of the unabridged certificate in terms of this regulation can be used.

It is advisable to ensure that all copies produced to any immigration officer, whether entering or departing from the Republic of South Africa, are certified copies of the original.

For foreigners entering into South Africa, the immigration officers will accept certified copies from the South African High Commission or consulate in the foreigner’s country. Section 8(1) of the Justice of the Peace and the Commissioner of Oaths Act, Act 16 of 1963, sets out who may act as a commissioner of oaths outside of the Republic of South Africa.

However, the Department of Home Affairs has indicated that they will accept certified copies from an equivalent authority should the country where the foreigner comes from not have a commissioner of oaths. However it is not clear what is meant by “an equivalent authority”.

b) Affidavits

If the parents or the person required to attest to an affidavit are South African and reside in South Africa, the affidavit must be attested to in front of a commissioner of oaths. In terms of the Justice of the Peace and the Commissioner of Oaths Act, Act 16 of 1963 Section 6 there are stipulated designated commissioner of oaths. The following people are the most common type of commissioner of oaths:

  • Attorneys, Notaries and Conveyancers,
  • Advocates,
  • Accountants,
  • Clerks of the court,
  • Magistrates,
  • Peace officers  or a police officer,
  • Judges clerk,
  • Sheriffs or messengers of the court,
  • Justice of the peace,
  • Sworn translator,
  • Any bank employee with a rank of supervisor or higher,
  • A headmaster or headmistress at a Private School

All foreigners entering into South Africa the affidavit must be signed at the South African High Diplomat or Consular Mission in their country. This is in terms of the Section 8(1) of the Justice of the Peace and the Commissioner of Oaths, Act 16 of 1963 which sets that for an affidavit to be valid in South Africa then the affidavit must be signed at the South African High Commissioner or Consular Mission.

However, the Department of Home Affairs has indicated that they will accept an affidavit commissioned by an equivalent authority should the country where the foreigner comes from not have a commissioner of oaths. However it is not clear what is meant by “an equivalent authority”.

2.6) Meaning of Court Order

In certain instances, if consent and permission of both parents is not obtained and only the consent of one parent is obtained, the Immigration Regulations stipulate that a Court Order is required.

The Court Order must either grant full parental responsibilities and rights over a minor child to one parent, or override a parent who refuses to allow the minor child to travel.

Full parental responsibilities and rights relates to certain responsibilities and rights over a minor child in terms of Section 18 of the Children’s Act. These mainly include:

  • to care for the minor child;
  • to maintain contact with the minor child;
  • to act as guardian of the minor child; and
  • to contribute to the maintenance of the minor child.

For explanation purposes, a foreigner wishing to enter into South Africa, the best way to explain the term “parental responsibilities and rights” would equate to:

  • custody over the minor child;
  • access to the minor child;
  • guardianship; and
  • the financial contribution towards the maintenance of the minor child.

Conclusion

It is imperative that if you are planning to travel to or from the Republic of South Africa with a minor child that you contact an attorney to assist you. Where necessary, the attorney will draft the court application to obtain the court orders required for travel or to assist with the drafting of the affidavits and compilation of the necessary paperwork.

The regulations have clearly indicated that if the paperwork surrounding the minor child is not in order, the minor child will not be allowed to leave or enter into the Republic of South Africa.

To avoid any risks, please contact Paizes Attorneys to assist with the following:

  • drafting of the necessary applications to court to obtain the court orders for the removal of non-consent of the uncooperative parent; and/or
  • the drafting of the necessary affidavit to accompany the parent or the third party; and/or
  • the compilation of the necessary paperwork.