1. PRESENTATION ON― 1. Births and Deaths Registration Amendment Bill, 2010 and 2. South African Citizenship Amendment Bill, 2010 (SC on Social Services, NCOP) 12 October 2010 Caring, compassionate and responsive

2. 12 TABLE OF CONTENTS Caring, compassionate and responsive 2 1.Purpose 2.Births and Deaths Registration Amendment Bill, 2010 2.1 Background 2.2 Problem statement (definitions and proposals) 2.3 Proposed Amendments (Clause by clause)

3. 13 TABLE OF CONTENTS Caring, compassionate and responsive 3 3. South African Citizenship Amendment Bill, 2010 3.1 Background 3.2 Problem statement (definitions and proposals) 3.3 Proposed Amendments (Clause by clause)

4. 14 1. PURPOSE Caring, compassionate and responsive 4 To brief the Portfolio Committee with regard to the proposed amendments to the Births and Deaths Registration Act, 1992 and the South African Citizenship Act, 1995, as a result of challenges experienced by the Department on the implementation of these Acts. The proposed amendments also seek to align these Acts with other pieces of legislation (Children’s Act, 2005 Immigration Act, 2002, the Identification Act, 1997 and the Promotion of Access to Information Act, 2000).

5. 15 Caring, compassionate and responsive 5 1. BIRTHS AND DEATHS REGISTRATION AMENDMENT BILL, 2010

6. 16 1.1 BACKGROUND… Caring, compassionate and responsive The main objective of the Bill is to amend the Births and Deaths Registration Act, 1992, with regard to the following: –Provisions relating to the registration of births (to be revised); –Provisions relating to amendments of birth registration (to be revised); –Designation of funeral undertakers (to make provision); 6

7. 17 1.1 BACKGROUND continued Caring, compassionate and responsive –Recording of adoptions (to make provision); –Provisions relating to secrecy of records obtained under the Act (to be revised); and –Provisions relating to the making of regulations (to clarify). 7

8. 18 1.2 Problem Statement: Registration of births… Caring, compassionate and responsive 8 PROBLEM DEFINITION (1): Notice within 30 days Act provides for parents, or person having charge of child, or person requested by parents or person having charge of child to give notice of birth. This allows “agents” to actively participate in births registration, resulting in inability to conduct verification processes. In some cases, this leads to false registrations.

9. 19 … Problem Statement: Registration of births … Caring, compassionate and responsive 9 PROPOSAL (1): Require only parents, or if parents are deceased, a legal guardian or next of kin (to be verified) to give notice of birth.

10. 110 …Problem Statement: Registration of births… Caring, compassionate and responsive 10 PROBLEM DEFINITION (2): Late Registration of Birth Act categorizes late registration of birth into three, with different requirements: 31 days up to one year; one year and above (i.e. up to 14 yrs); and 15 years and above. Currently the Act places more emphasis on processes for age 15 and above.

11. 111 …Problem Statement: Registration of births… Caring, compassionate and responsive 11 PROPOSAL (2): Categorize Late Registration of Birth into one (i.e. 31 days and above) and provide for stringent requirements in the Regulations [e.g. screening process for applications, verification of details provided (including fingerprints), approval per age category by Head of Office, DG and Minister)]

12. 112 Caring, compassionate and responsive 12 1.3 PROPOSED AMENDMENTS (Clause by clause)

13. 113 Clause 1: Amendment of Definitions Caring, compassionate and responsive 13 Current provision New provisionReason for amendment Section 1 Substituted subsection (1) Use correct drafting style and format (i.e. remove numbering) Remove reference to the repealed Acts such as the Age of Majority Act, 1972 and the Identification Act, 1988 and substitute with the Children’s Act, 2005 and the Identification Act, 1997, respectively. Deleted subsection (2) Recognition of customary marriages is regulated by the Recognition of Customary Marriages Act, 1998 and such is reflected in the new definition of marriage.

14. 114 Clause 2: Technical corrections Caring, compassionate and responsive 14 Current: No procedure is made for making requests for supplementation or rectification of particulars furnished in terms of the Act. Amendment: Amends section 7 of the Act in order to provide for the procedure for making requests.

15. 115 Clauses 3: Technical corrections Caring, compassionate and responsive 13 Current: Minister of Finance is referred to as the Minister of State Expenditure. Amendment: Amends section 8 of the Act in order to refer to the Minister of Finance. 15

16. 116 Clause 4 Amends section 9: Notice of Birth … Caring, compassionate and responsive 16 CURRENT: Act authorises parents, or person having charge of child, or person requested by parents or person having charge of child to give notice of birth. This allows “agents” to actively participate in the process of births registration. AMENDMENTS: Requires only parents, or if parents are deceased, any of the prescribed persons (i.e. legal guardian, next of kin) to give notice of birth.

17. 117 … Clause 4 Continued Caring, compassionate and responsive 17 AMENDMENT: Empower Director-General to demand that biometrics of the person whose notice of birth is given, and that of person giving notice (i.e. parents legal guardian or next of kin), be taken in the prescribed manner. CURRENT: Act categorizes late registration of birth (LRB) into three categories, namely (a) 31 days up to one year, (b) one year up to 14 yrs and (c) 15 yrs and above with different requirements. The Act places emphasis on processes for age 15 and above. AMENDMENTS: Only one category of LRB, namely 31 days and above, and provide for stringent requirements in the Regulations

18. 118 Clause 5 - Amends section 11: Child born out of wedlock Caring, compassionate and responsive 18 CURRENT: Act permits amendment of birth registration particulars of child born out of wedlock after first registration. AMENDMENTS: Require prescribed conclusive proof of paternity in case where father’s details are amended to “second father”. This will deal with issues of “Rent-a- Child” which is becoming a trend to obtain a permit under the Immigration Act, 2002.

19. 119 Clause 6 Amends s12: Notice of Birth - abandoned child Caring, compassionate and responsive 19 CURRENT: Act only provides for registration of abandoned child. AMENDMENTS: Adds provision for “orphaned child” in order to ensure that “child headed families” get assistance to register their births. This will be in line with the Children’s Act, 2005.

20. 120 Clause 7 Amend section 19(4): Death outside the Republic Caring, compassionate and responsive 20 CURRENT: Section 19(4) of the Act makes reference to the repealed Aliens Control Act, 1991. AMENDMENT: To make reference to the Immigration Act, 2002.

21. 121 Clause 8 Inserts section 22A: Funeral Undertakers Caring, compassionate and responsive 21 CURRENT: No provision authorising designation of funeral undertakers to act as agents for death registration activities. AMENDMENTS: Funeral undertakers to be designated on compliance with prescribed requirements – process to ensure that persons handling death registration forms are authorised, in order to minimise corruption in the process.

22. 122 Clause 9 Substitutes section 23: Still-birth Caring, compassionate and responsive 22 CURRENT: Section uses gender insensitive wording. AMENDMENT: To substitute section 23 of the Act in order to align the Act with drafting style and format (gender sensitive).

23. 123 Clauses 10, 11, 12 and 13 Technical corrections Caring, compassionate and responsive 23 CURRENT: Sections 24, 25, 26 and 27A do not make provision for the manner for making applications. A legal opinion was obtained to the effect that the Department will not be able to refuse any person not willing to fill in a form not authorised by the Act. AMENDMENT: Provision is made for the manner of making application (i.e. prescribed form in the Regulations).

24. 124 Clause 14 Inserts section 27B: Recording of adoption Caring, compassionate and responsive 24 CURRENT: Provision for recording of adoption is made through the Children’s Act, 2005. No procedure has been set out in the Births and Deaths Registration Act, 1992. AMENDMENTS: Recording of adoption in birth registers to be made in line with section 245 of the Children’s Act, 2005. To prescribe (in the Regulations) requirements additional to the ones mentioned in the Children’s Act (e.g. adoption records).

25. 125 Clause 15 Amends section 28: Application for certificate from Population Register Caring, compassionate and responsive 25 CURRENT: The manner of making an application to be issued with a certificate is not provided for in section 28 of the Act. AMENDMENT: Provision is made for the use of a prescribed form to make an application to be issued with a certificate from the population register, as well as to prescribe the requirements to be complied with in making such an application.

26. 126 Clause 16 Amend section 29(2)(b): secrecy of records Caring, compassionate and responsive 26 CURRENT: Access provisions not aligned to the Promotion of Access to Information Act, 2000 in order to improve access rights balanced with secrecy of the records obtained under the Act. AMENDMENT: Revised section 29(2)(b) of the Act in order to align the provision relating to access to records with the provisions of the Promotion of Access to Information Act, 2000. This clause further seeks to allow for the making of regulations as to the procedure for making an application for access to such records.

27. 127 Clauses 17 and 18 Caring, compassionate and responsive 27 Clause 17 repeals section 30 of the Act that deals with exemption from stamp duties. Clause 18 substitutes section 31 of the Act in order to revise the penalty for offences (period of imprisonment) from five to fifteen years.

28. 128 Clauses 19, 20 and 21 Caring, compassionate and responsive 28 Clause 19 substitutes section 32 of the Act in order to provide clarity regarding the making of regulations. Clause 20 substitutes the words “he”, “him” or “his” in the Act of the words “he or she”, “him or her” and “his or her” wherever they occur. Clause 21 deals with the short title and commencement.

29. 129 Caring, compassionate and responsive 29 2. SOUTH AFRICAN CITIZENSHIP AMENDMENT BILL, 2010

30. 130 2.1 BACKGROUND Caring, compassionate and responsive The main objective of the Bill is to amend the South African Citizenship Act, 1995, with regard to the following: –Provisions relating to the acquisition of citizenship by birth, descent and naturalisation (to be revised); and –loss of citizenship (revised in relation to naturalised citizens). 30

31. 131 2.2 Problem Statement: Acquisition of citizenship Caring, compassionate and responsive 31 PROBLEM DEFINITION: Citizenship by birth and by descent CURRENT: A child born of South Africans outside the Republic is regarded as South African by descent, and not by birth. This tends to create a secondary category of citizens. PROPOSAL: Revise provisions relating to citizenship by birth for children born in or outside the Republic with one parent being a citizen, and citizenship by descent for children who are adopted by South Africans.

32. 132 … 2.2 Problem Statement: Acquisition of citizenship … Caring, compassionate and responsive 32 PROBLEM DEFINITION: Period of residence for naturalisation CURRENT: Period required for cases of naturalisation is made up of one (1) year of ordinary residence prior to making an application, plus 4 years additional period of residence calculated by taking the number of actual days that a permanent resident resided in the Republic in every year (out of 7 years). This provision in section 5(1)(c) of the Act poses serious interpretation problems resulting in miscalculation of the period and ultimately granting naturalisation too early.

33. 133 … 2.2 Problem Statement: Acquisition of citizenship … Caring, compassionate and responsive 33 PROPOSAL: Require a person to have 5 years continuous period of ordinary residence in the Republic in order to qualify for certificate of naturalisation. Clarification with regard to the meaning of period of ordinary residence to be made in the Regulations.

34. 134 … 2.2 Problem Statement: Acquisition of citizenship … Caring, compassionate and responsive 34 PROBLEM DEFINITION: Dual citizenship for naturalised persons Most persons who apply for naturalisation are from countries that do not recognise dual citizenship. PROPOSAL (1): Any person applying for naturalisation should be a citizen of country that allows dual citizenship, and if not allowed, such person must renounce the citizenship of that country, if he or she wishes to have SA citizenship by naturalisation.

35. 135 … 2.2 Problem Statement: Acquisition of citizenship … Caring, compassionate and responsive 35 PROPOSAL (2): Any naturalised person who engages in a war, that the Government of the Republic does not support, under the flag of any other country, should not be eligible to apply to the Minister for retention of citizenship, but should lose his or her citizenship.

36. 136 Caring, compassionate and responsive 36 2.3 PROPOSED AMENDMENTS (Clause by clause)

37. 137 Clause 1: Definitions Caring, compassionate and responsive Current provision New provisionReason for amendment Entire section 1 Substitution of section 1 To insert certain definitions to align the Act with the Immigration Act, the Children’s Act, 2005 and to further bring the Act in line with the correct drafting style and format. 37

38. 138 … Clause 1: Definitions Caring, compassionate and responsive 38 Current provision New provisionReason for amendment “Customary union” “Marriage” defined to include all types of legally recognised South African marriages. The Act creates a process of recognition of customary union by the Minister, and this conflicts with the process under the Recognition of Customary Marriages Act, 1998.

39. 139 Clause 2 … Amend section 2: Citizenship by birth Caring, compassionate and responsive 39 Revises section 2 to provide that a person who is born in or outside the Republic and one of his or her parents is or was, at the time of his or her birth, a South African citizen, shall be a South African citizen by birth.

40. 140 … Clause 2 (continued) … Caring, compassionate and responsive 40 Further provides that no person shall be a South African citizen by birth if, at the time of his or her birth, one of his or her parents had not been admitted into the Republic for permanent residence and his or her other parent was not a South African citizen.

41. 141 … Clause 2 continued… Caring, compassionate and responsive 41 Furthermore provides that any person born in the Republic and who is not a citizen, shall be a citizen by birth if he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality, and such person’s birth has been registered in Republic i.t.o. the Births and Deaths Registration Act, 1992.

42. 142 … Clause 2 continued Caring, compassionate and responsive 42 Further provides that any person born in the Republic, of parents who have been admitted into the Republic for permanent residence, and who is not a citizen, qualifies to be a citizen by birth, IF he or she has lived in Republic from the date of birth up to attaining the age of majority and his or her birth is registered in Republic i.t.o. the Births and Deaths Registration Act, 1992.

43. 143 Clause 3 Substitutes section 3: Citizenship by Descent Caring, compassionate and responsive 43 Substitutes section 3 to provide that a child adopted by a South African citizen acquires citizenship by descent.

44. 144 Clause 4 Amends section 4: Citizenship by naturalisation Caring, compassionate and responsive 44 Revises section 4 to provide that a child born in Republic of parents who are not citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major IF he or she has lived in the Republic from his or her date of birth to date of becoming a major, and has registered his or her birth i.t.o. the Births and Deaths Registration Act, 1992.

45. 145 Clause 5 … Amends section 5: Certificate of naturalisation Caring, compassionate and responsive 45 Amends section 5 to effect certain technical corrections and to require a period of five (5) years continuous ordinary residence in the Republic. Further provides for an additional requirement that a person applying for naturalisation should be a citizen of a country that allows dual citizenship, and in the case where such person’s country does not allow dual citizenship, the said person renounces his or her citizenship of that country.

46. 146 … Clause 5 continued Caring, compassionate and responsive 46 This clause also empowers the Minister to grant a certificate of naturalisation as a citizen to a foreigner who satisfies the Minister that he or she is the spouse or surviving spouse of a citizen and that he or she has been (a) admitted to the Republic for permanent residence and has been married to such citizen during the prescribed period of residence in the Republic.

47. 147 Clause 6 Amends section 6: Loss of citizenship Caring, compassionate and responsive 47 CURRENT: No provision for loss of citizenship by naturalised citizen for engaging in war that the Republic does not support. AMENDMENT: Amends section 6 of the Act to provide that naturalised citizen may not apply for retention of citizenship if he or she wishes to engage in a war, that the Government of the Republic does not support, under the flag of any other country.

48. 148 Clause 7 Substitutes section 8(3): Deprivation of citizenship Caring, compassionate and responsive 48 Substitutes section 8(3) to effect certain technical corrections and to revise penal provisions (period of imprisonment, from two to five years).

49. 149 Clause 8 Amends section 10: Deprivation of citizenship in case of children Caring, compassionate and responsive 49 CURRENT: The Act refers to the repealed Guardianship Act, 1993. AMENDMENT: Makes reference to the Children’s Act, 2005.

50. 150 Clause 9 Amends section 11(3): Status of persons who cease to be South African citizens Caring, compassionate and responsive 50 CURRENT: Act makes reference to the repealed Aliens Control Act, 1991,.and uses the word “alien” AMENDMENT: To make reference to the Immigration Act, 2002, and to substitute the word “alien” of the word “foreigner”.

51. 151 Clauses 10 Amends section 13: Resumption of citizenship Caring, compassionate and responsive CURRENT: Act makes reference to the repealed Aliens Control Act, 1991 AMENDMENT: To make reference to the Immigration Act, 2002. 51

52. 152 Clauses 11 and 12 Caring, compassionate and responsive 52 Clause 11: Provides for the substitution of words “alien” and “Supreme Court” wherever they appear in the Act with the words “foreigner” and “High Court”. Clause 12: Deals with short title and commencement.

53. 153 THANK YOU SIYABONGA RE A LEBOGA Caring, compassionate and responsive