HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

  • If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
  • If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
  • If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

  • at the time of the child’s birth, is living with the mother in a permanent life partnership, or
  • consents to be identified as the child’s father, or
  • successfully applies to be identified as the child’s father, or
  • pays damages in terms of Customary Law, or
  • contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

  • The best interests of the child.
  • The relationship between the unmarried father and the child.
  • The relationship between any other person and the child, such as the mother.
  • The degree of commitment the unmarried father has shown towards the child.
  • Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
  • Any other factor the court considers to be relevant, such as:
    • whether the unmarried father has a history of violence towards children;
    • the effect of separating the child from his/her mother; or
    • the child’s attitude towards the relief sought in the application.

Reference

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

MY EX’S NEW PARTNER IS ABUSIVE TO MY CHILDREN

It is important for a child to have access to both parents, and in a situation where both parents were actively involved in the child’s life, the access to both parents should be as equal as possible. As much as you don’t want to pry on your ex’s time with your children, what should you do if your ex’s new partner is abusive towards your child? Section 28(1)(d) of the Constitution of the Republic of South Africa states that every child has the right to be protected from maltreatment, neglect, abuse or degradation.

What defines abuse?

  • Physical Abuse: This type of abuse is one where the abuser conducts an act which leads to physical bodily harm such as bruises, cuts, burns and fractures.
  • Emotional Abuse: Emotional abuse constitutes domestic violence, and is identified as a pattern of degrading or humiliating conduct towards the child.
  • Verbal Abuse: This kind of abuse may be harder to differentiate from emotional abuse; verbal abuse is the act towards the child, and emotional abuse is the result.

What to do?

A parent cannot stop the other parent from having access to a child. Visitation must be in accordance with the parenting plan. The Children’s Act stipulates that the rights of the children are the most important, and their rights should be protected, promoted and respected. The child’s emotional and intellectual needs are considered when making decisions about what is best for the child.

  • Firstly, try to speak to the person whom you have joint custody with, to try to come up with a solution before approaching legal representatives.
  • If this fails, report the suspected abuse. This report will serve in your child’s favour when in court.
  • Apply for the amendment of the parenting plan. This can include limited visitation which should be administered through the Office of the Family Advocate.
  • Only three people may request amendment or termination of the agreement:
  1. Parents of the child,
  2. The child, or
  3. A person who is acting in the interest of the child.
  • Rights can be minimised or terminated by the court

References:

  • The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE RIGHTS OF A DOMESTIC PARTNERSHIP

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

Reference List:

  • Butters v Mncora 2012 (4) SA 1 (SCA).
  • Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
  • Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
  • Intestate Succession Act 81 of 1987.
  • Maintenance of Surviving Spouse Act 27 of 1990.
  • Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
  • The Domestic Partnership bill in GG 30663 of 14-01-2008.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE DIFFICULTIES IN RELOCATING A CHILD OF DIVORCED PARENTS

I have divorced my husband and I am now the primary caregiver of our minor child. I received a job offer in another country and I would really like to accept it. My ex-husband and father of my minor child won’t consent to the relocation of our minor child. Will I get permission from the court to relocate?

In the case of relocation disputes where the primary caregiver wants to relocate, there are certain factors the court considers before granting the relocation. These factors are listed in Section 7 of the Children’s Act.

As one can imagine, family law and divorces are difficult topics; especially when minor children are involved. In the event the parties separate, the minor children will need to be in the primary care of one parent and the other parent will have rights and responsibilities in respect of the minor child but does not necessarily have to live with the child.

The issue that arises in situations as outlined above is where the primary care-giver wants to relocate to another country and the other parent won’t give consent (hereafter “the disputing party”). The difficult part of disputes relating to relocation is that there are numerous competing rights. The Children’s Act (“the Act”) regulates and makes provision for those rights.

In order to have a full understanding of the issues that arise here, a breakdown of the various rights should be discussed. Firstly, the right to freedom of movement and association of the primary caregiver may become a problem. Secondly, the rights of the opposing parent to be in contact with the minor child. Lastly, the rights of the minor child are restricted, i.e. the right of the child to maintain personal relations and direct contact with his parents.  The infringement of these rights can, by their very nature, turn into a dispute.

Where the dispute cannot be resolved between the parties through negotiation, the parties would rather opt for mediation than litigation. The reason for choosing the former is because of the nature of the dispute – it is a family matter and there are minor children involved. Litigation is a more strenuous route of dispute resolution, thus not the most suitable given the circumstances.

Where the court is tasked with making a ruling in a relocation dispute, there are certain factors the court considers. Section 7 of the Act sets out a list of these factors.

If the parties are divorced, the court will consider whether there is a court order in existence prohibiting the removal of the child from the court’s jurisdiction. In some case, the parties agree in their settlement agreement to never remove the minor children from the Republic of South Africa.

In the event the court has to consider the right to contact with the minor child, the court looks at the meaning of the word “contact” as used in the Children’s Act. It is important to keep in mind that “contact” does not only mean the physical seeing of each other in flesh, but also communications via laptop and/or cell phone. This form of contact is easier to make use of in our era.

The court will consider the reason for the relocation as a factor in these matters. The reason for this consideration is because the best interest of the child is of utmost importance. If the reason for relocation is, for example, to contribute to the child’s education or safety (something that would be considered positive), the court is likely to be more pleased.

The court will also consider the relationship the child has with the parents. If the opposing parent has a great relationship with the minor child and sees the child every alternate weekend or holiday and will now only be able to email the child- the court will have to consider this and the possible influence the absence of the opposing party would have on the minor child, if relocation is granted.

This will also become clearer when the court considers the choice of the minor to relocate or not.

The court also considers the stability factor. This includes the court considering the life outside the home of the minor. It is important to know whether the child is happy where he/she is, how well the child does at school, whether he/she has family members living nearby and whether he/she visits on a regular basis.

As with the conflicting rights of the parties, the court kept the best interest of the child in mind, whilst considering the abovementioned factors. The court in the AC v KC case also applied the “reasonable person’s test” and the court held that “one must think oneself into the shoes of the proverbial bonus paterfamilias or the reasonable man”. Even though the reasonable person test was used in AC v KC, the best interest of the child is the most important factor.

Reference list:

  • Children’s Act 38 of 2005
  • A.C. v K.C. (A 389/08) [2008] ZAGPHC 369
  • Jackson v Jackson (18/2001) [2001] ZASCA 139

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

  • If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
  • If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
  • If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

  • at the time of the child’s birth, is living with the mother in a permanent life partnership, or
  • consents to be identified as the child’s father, or
  • successfully applies to be identified as the child’s father, or
  • pays damages in terms of Customary Law, or
  • contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

  • The best interests of the child.
  • The relationship between the unmarried father and the child.
  • The relationship between any other person and the child, such as the mother.
  • The degree of commitment the unmarried father has shown towards the child.
  • Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
  • Any other factor the court considers to be relevant, such as:
  • whether the unmarried father has a history of violence towards children;
  • the effect of separating the child from his/her mother; or
  • the child’s attitude towards the relief sought in the application.

Reference :

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

IMMEDIATE STEPS FOLLOWING THE DEATH OF A LOVED ONE

The death of a loved one is a difficult process to go through, and when the inevitable occurs, it is important to remember what happens next. The cause of death is determined under 2 categories: natural death, such as illness or heart attack, and unnatural death, such as a suicide or an accident.

Natural or unnatural death

If the deceased has passed in their home, and cause of death is suspicious, the family is required to contact the South African Police Service (SAPS) to conduct an immediate investigation before contacting the mortuary. In the event where death is natural, the family is required to contact medical professionals to determine the nature of the death, and sign certification of the cause of death.

Death certificate

A prescribed certificate may be issued by the medical practitioner if the death is ruled as natural, either following a period of illness, or a medical examination. Should it be suspected that the death is unnatural, the certificate may only be issued to the concerned police officer after an investigation where the corpse is no longer required for further examination.

An autopsy is not deemed necessary should the death be ruled as natural.

Registration of death may take be done the following places:

  • Department of Home Affairs
  • SAPS, if there are no Home Affairs offices available
  • South African Embassy or Consulate, should the death have occurred abroad
  • Registered funeral undertakers

An abridged death certificate is issued on the same day of registration, free of charge.

References

  • Births and Deaths Registration Act 51 of 1992. (2017). [PDF] Cape Town: Government Gazette. Available at: http://www.gov.za/sites/www.gov.za/files/a51_1992.pdf [Accessed 31 Jul. 2017].
  • Dha.gov.za. (2017). Department of Home Affairs – Death Certificates. [online] Available at: http://www.dha.gov.za/index.php/death-certificates1 [Accessed 31 Jul. 2017].
  • Grange, H. (2017). What to do when someone dies | IOL. [online] Iol.co.za. Available at: http://www.iol.co.za/the-star/what-to-do-when-someone-dies-1810336 [Accessed 31 Jul. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CHILD MAINTENANCE AND FREEDOM OF TESTATION

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

What is freedom of testation?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how their property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle, South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Furthermore, once the testator’s wishes have been established, a court is ordinarily bound to give effect to these wishes.

Are their restrictions?

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Spouses and children may also be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

Disinheritance

There is a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Testators are also not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Parental duty and maintenance

The parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906). The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Conclusion

Currently, South African law provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

ADOPTING A CHILD IN SOUTH AFRICA

Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.

A legal adoption order ends the parental rights of the birth mother and father and hands over the parental rights and responsibilities to the adoptive parents.

There are 4 phases in the adoption process:

  1. Application
  • In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.
  • When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
  • Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.
  1. Screening process
  • All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:
  • orientation meetings,
  • interviews with a social worker,
  • full medical examinations,
  • marriage and psychological assessments,
  • home visits, and
  • police clearance and the checking of references.
  • The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.
  1. Waiting list
  • Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.
  • They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.
  1. Placement
  • The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.
  • Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.
  • The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

An adopted child is regarded as the biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court states otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

AN EX-SPOUSE REFUSING TO PAY MAINTENANCE?

If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

  1. A warrant of execution;
  2. An attachment order against the defaulter’s salary;
  3. An order to attach any debts; and
  4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

  1. Go to the court and complete the form “Application for a maintenance order (J101)”.
  2. Also submit proof of your monthly income and expenses.
  3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  5. The court will serve a summons on the respondent.
  6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

REGISTERING DEATHS AND DEATH CERTIFICATE REQUIREMENTS IN SOUTH AFRICA

Many South African citizens do not know the correct procedures to follow in order to register a death, or how to obtain a death certificate and by whom, until it is too late. Coming to terms with a death is difficult enough without having to enquire about the legal processes that are necessary in the circumstances in order to proceed with funeral arrangements and other family affairs. The Births and Deaths Registration Act 51 of 1992 outlines the simple requirements and procedures to be followed upon the death of a South African citizen.

The Births and Deaths Registration Act no. 51 of 1992 requires that a person’s death must be reported to any one of the following people authorised by The Department of Home Affairs. Specific officers at the Department of Home Affairs, South African Police Service members, South African Missions, Embassy’s or Consulates where the death occurred abroad or funeral undertakers that have been appointed and are recognised by law.

A Notification of Death or Still Birth Form (Form BI-1663) must be completed when reporting a death. This form, along with all other forms that may be necessary are available from all Home Affairs offices. The following people have to complete different sections of this form in order for it to be submitted: the person reporting the death, the medical practitioner or traditional healer involved in the declaration of the death, and a Home Affairs official or a member of the Police service if a Home Affairs official is not available.

A Death Report (Form BI-1680) will be issued after a death has been registered with one of the relevant department officials. Only someone whom the Department of Home Affairs has authorised to do so can issue this report and this includes traditional leaders, members of the SA Police Services and authorised undertakers.

These designated people may also issue burial orders. No burial may take place unless authorised by way of a burial order (Form BI-14).

Deaths of South African citizens and South African permanent residence permit holders that occur outside South Africa must be reported to the nearest South African embassy or mission abroad. The country in which the death occurs must issue a death certificate and a certified copy of the death certificate must be submitted to the South African embassy or mission when reporting a death. If the deceased is to be buried in South Africa, the embassy or mission will assist with the paperwork and arrangements with regards to transportation of the body to South Africa.

The Department of Home Affairs will issue a Death Certificate on receipt of the notification of death form BI-1663 and the Death Report form BI-1680. Applications for a Death Certificate must be lodged at any office of the Department of Home Affairs or at any South African embassy, mission or consulate if the death occurs abroad. An abridged death certificate will be issued free of charge on the same day of registration of death. An unabridged death certificate can be obtained by completing Form

BI-132 and paying the required fee.

If a person has been recorded, mistakenly or fraudulently, as dead in the National Population Register, (i.e. they are still alive); this must be reported as soon as possible to the nearest Department of Home Affairs office for urgent investigation and corrective action.

Chapter 3 (Section 14 to 22) of the Births and Death’s Registration Act regulates all matters pertaining to the Registrations of Deaths in South Africa and regulations on how to obtain a Death Certificate. The Act provides for the different procedures to be followed when a death is due to natural causes, stillbirth or other methods. This process is simple to follow and the appointed officials at Home Affairs Departments are fully equipped to process registrations and to answer any questions you may have.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)