The Children's Institute (CI), based at the University of Cape Town (UCT), and the Legal Resources Centre (LRC) have secured a temporary victory in the fight to protect children without birth certificates from repeatedly losing their child support grants (CSGs).
On Monday, 25 January 2021, the South African Social Security Agency (SASSA) agreed to reinstate the CSGs for thousands of children without birth certificates, following the termination of the grants at the end of December 2020. According to the CI and the LRC, this termination plunged children and their families into destitution midway through the second wave of the COVID-19 pandemic.
According to SASSA, there were about 16 000 children without birth certificates receiving CSGs in October 2020, and when the grants were terminated at the end of December, the CI and LRC stepped in to ensure that they were reinstated. Because of this, SASSA agreed to reinstate the grants in the February pay run, with backpay for January, and to keep paying the grants for the duration of the national state of disaster.
"This practice is unreasonable and unfair to children and their caregivers."
While this temporary reprieve is welcome, the CI and LRC remain concerned as the state of disaster ends on 15 February 2021, meaning that the CSGs could be terminated again at the end of the month.
"This constant termination of the CSG is unlawful as it is not authorised by the Social Assistance Act or its regulations," said Mbonisi Nyathi, a researcher at the CI.
Since 2009 SASSA has been imposing a three-month restriction on the receipt of the grants by children without birth certificates, during which an application for birth registration must be lodged with Home Affairs. If a caregiver fails to provide a birth certificate or proof of application, SASSA terminates the grant.
"Even in cases where proof of application to Home Affairs is provided to SASSA, our clients still have their grants terminated.
"This practice is unreasonable and unfair to children and their caregivers, as many are unable to apply at Home Affairs or are subjected to long waiting periods before their documents are made available," said Nyathi.
And these waiting periods have increased under the different national lockdown levels due to decreased capacity and limited types of services available at Home Affairs.
Further, children and their caregivers are unnecessarily exposed to the coronavirus each time they undertake a visit to Home Affairs to have the grants reinstated.
Caregivers of children without birth certificates are legally entitled to apply for a social grant in terms of regulation 11(1) of the Social Assistance Act. This provision allows them to receive a grant even though they do not yet have birth certificates, which is ordinarily required at the application stage.
"While parents must register the birth of a child and ensure that the child receives a birth certificate, the reality is that many parents or caregivers are, due to circumstances outside of their control, unable to obtain birth certificates from Home Affairs," Nyathi explained.
"Most of our clients are over the age of one, which means they require a late birth registration, which involves [submitting] multiple supporting documents and an interview process."
"Many of our clients have waited for more than two years for Home Affairs to process their applications for late birth registration."
Difficulties are experienced particularly when the mother's birth was not registered and she does not have an identity document. Where the child is in the care of a grandparent or other family members due to the mother's death or unknown whereabouts, the law requires a social worker to register the child's birth.
"Many relatives struggle to receive support from social workers, and these orphaned and abandoned children remain unregistered for many years," said Paula Proudlock, a senior researcher at the CI.
Unmarried single fathers are also often unable to register their children's births as Home Affairs unlawfully denies them the right to apply for their children's registration in the absence of the mother.
Further, maternity wards will not release maternity certificates to unmarried fathers, even in cases where the child's mother has died or abandoned the family. Without this document, the father cannot register the birth unless he obtains the assistance of a social worker or the children's court.
And in rural areas caregivers often lack the financial resources to continue to travel to Home Affairs to finalise birth registrations, which tend to take several visits.
"Many of our clients have waited for more than two years for Home Affairs to process their applications for late birth registration, while others had to visit the offices on multiple occasions before being allowed to apply," said Proudlock.
Others have been unable to apply as they do not have all the required documentation, and the chances of securing documentation without assistance are slim. Even in cases where the proof of birth registration application was provided to SASSA, the CI and LRC have seen grants being terminated after three months, forcing the caregiver to reapply.
The CI and LRC have requested SASSA to continue to support these children at least until the end of 2021 when the vaccination process will have lowered the number of infections and Home Affairs and SASSA service levels have improved.
The three-monthly termination of this grant during the COVID-19 pandemic places an additional burden on SASSA and Home Affairs.
"Ultimately, the CI and LRC seek to have the three-month termination practice permanently removed. The burden of obtaining documents from Home Affairs falls disproportionately on children, parents and caregivers, who are unable to control Home Affairs' internal processes or lack of response from social workers," said Proudlock.
"The system should rather place the burden on Home Affairs and [the Department of] Social Development to prioritise processing these children's birth certificates."
The CI and LRC had requested a formal response from the minister and SASSA by Friday, 29 January, with respect to the permanent removal of the three-month termination practice.
At the time of writing, a response had not been received.