PRESENTATION ON― 1. Births and Deaths Registration Amendment Bill, 2010 and 2. South African...
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Transcript of 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
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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
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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
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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…
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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
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– 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…
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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 …
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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…
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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…
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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)]
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1.3 PROPOSED AMENDMENTS (Clause by clause)
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Clause 1: Amendment of Definitions
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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
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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 …
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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• 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
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• 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.
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2. SOUTH AFRICAN CITIZENSHIP AMENDMENT BILL,
2010
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2.1 BACKGROUND
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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
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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 …
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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 …
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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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… 2.2 Problem Statement:Acquisition of citizenship …
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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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… 2.2 Problem Statement:Acquisition of citizenship …
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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.
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2.3 PROPOSED AMENDMENTS (Clause by clause)
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Clause 1: Definitions
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Current provision
New provision Reason 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.
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… Clause 1: Definitions
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Current provision
New provision Reason 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.
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Clause 2 … Amend section 2: Citizenship by birth
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• 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) …
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• 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…
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• 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
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• 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
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• 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
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• 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
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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
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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
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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
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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
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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
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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
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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
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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
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