PRESENTATION ON― 1. Births and Deaths Registration Amendment Bill, 2010 and 2. South African...

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

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TABLE OF CONTENTS

Caring, compassionate and responsive 2

1. Purpose

2. Births and Deaths Registration Amendment Bill, 2010

2.1 Background2.2 Problem statement (definitions and proposals)2.3 Proposed Amendments (Clause by

clause)

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TABLE OF CONTENTS


3. South African Citizenship Amendment Bill, 2010

3.1 Background

3.2 Problem statement (definitions and

proposals)

3.3 Proposed Amendments (Clause by

clause)

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1. PURPOSE


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).

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1. BIRTHS AND DEATHS REGISTRATION AMENDMENT

BILL, 2010

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1.1 BACKGROUND…


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);

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1.1 BACKGROUND continued


– 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).

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1.2 Problem Statement: Registration of births…


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.

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… Problem Statement: Registration of births …


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.

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…Problem Statement: Registration of births…


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.

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…Problem Statement: Registration of births…


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)]


1.3 PROPOSED AMENDMENTS (Clause by clause)

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Clause 1: Amendment of Definitions


Current provision

New provision Reason 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.

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Clause 2: Technical corrections


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.

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Clauses 3:Technical corrections


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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.

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Clause 4 Amends section 9: Notice of Birth …


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.

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… Clause 4 Continued


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

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Clause 5 - Amends section 11: Child born out of wedlock


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.

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Clause 6 Amends s12: Notice of Birth - abandoned

child


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.

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Clause 7 Amend section 19(4): Death outside the

Republic


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.

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Clause 8 Inserts section 22A: Funeral Undertakers


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.

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Clause 9

Substitutes section 23: Still-birth


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).

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Clauses 10, 11, 12 and 13 Technical corrections


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).

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Clause 14 Inserts section 27B: Recording of adoption


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).

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Clause 15 Amends section 28: Application for certificate from

Population Register


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.

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Clause 16Amend section 29(2)(b): secrecy of records


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.

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Clauses 17 and 18


• 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.

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Clauses 19, 20 and 21


• 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.


2. SOUTH AFRICAN CITIZENSHIP AMENDMENT BILL,

2010

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2.1 BACKGROUND


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).

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2.2 Problem Statement:Acquisition of citizenship


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.

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… 2.2 Problem Statement:

Acquisition of citizenship …


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.

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… 2.2 Problem Statement:Acquisition of citizenship …


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.

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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.

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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.


2.3 PROPOSED AMENDMENTS (Clause by clause)

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Clause 1: Definitions


Current provision


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.

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… Clause 1: Definitions


Current provision


“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.

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Clause 2 … Amend section 2: Citizenship by birth


• 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.

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… Clause 2 (continued) …


• 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.

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…Clause 2 continued…


• 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.

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…Clause 2 continued


• 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.

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Clause 3

Substitutes section 3: Citizenship by Descent


• Substitutes section 3 to provide

that a child adopted by a South

African citizen acquires

citizenship by descent.

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Clause 4 Amends section 4: Citizenship by naturalisation


• 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.

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Clause 5 … Amends section 5: Certificate of naturalisation


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.

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… Clause 5 continued


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.

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Clause 6 Amends section 6: Loss of citizenship


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.

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Clause 7Substitutes section 8(3):

Deprivation of citizenship


Substitutes section 8(3) to effect certain technical corrections and to revise penal provisions (period of imprisonment, from two to five years).

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Clause 8Amends section 10: Deprivation of

citizenship in case of children


CURRENT: The Act refers to the

repealed Guardianship Act, 1993.

AMENDMENT: Makes reference to

the Children’s Act, 2005.

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Clause 9Amends section 11(3): Status of persons who cease to be South African citizens


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”.

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Clauses 10Amends section 13: Resumption of

citizenship


CURRENT: Act makes reference to

the repealed Aliens Control Act,

1991

AMENDMENT: To make reference to

the Immigration Act, 2002.

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Clauses 11 and 12


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.

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THANK YOU

SIYABONGA

RE A LEBOGA


PRESENTATION ON― 1. Births and Deaths Registration Amendment Bill, 2010 and 2. South African...

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