Source: De Rebus (Pretoria)
By Faith Tigere
SS v Presiding Officer, Children’s Court, Krugersdorp and Others 2012 (6) SA 45 (GSJ)
‘Children are the soul of our society. If we fail them, then we have failed as a society.’ These are the words of Saldulker J in the case of SS v Presiding Officer, Children’s Court, Krugersdorp and Others 2012 (6) SA 45 (GSJ).The aftermath of the 2015 xenophobic attacks is closely tied to the government initiative – Operation Fiela. The initiative, on the face of it, was aimed at cleaning up crime-ridden areas. However, the enforcement of the initiative resulted in the displacement of many undocumented foreign nationals. Affected in the process were children that accompany the undocumented parents. In most cases, these undocumented migrant children were born in the Republic and, in terms of South African law, children take the status of their parents. When they are born, they are not issued with birth certificates. Section 28(1)(a) of the Constitution states that all children have a right to a name and identity.
According to the Children’s Act 38 of 2005, undocumented migrant children may be processed, but not issued with South African birth certificates. In the case of refugee undocumented children, they may be assisted with application for asylum. However, the challenege lies with undocumented migrant children whose parents are not refugees – most of them reach the age of majority without any documentation. When they attain the age of 18, they become undocumented and may be deported in their capacity as adults. The status of these undocumented immigrant children is a growing challenge.