Chapter 2 LEGAL FRAMEWORK The legal framework dealing with documentation and legal status for children in South Africa is based on the following key national, regional and international laws and principles that are applicable in South Africa. 2.1: NATIONAL LAW Constitution of the Republic of South Africa 1996 (“Constitution”): Section 28 of the Constitution guarantees the rights of all children in South Africa, irrespective of their documentation or legal status. Section 28(a) states that, “every child has the right to a name and a nationality from birth”. This entails the right to a legal identity, the right to be registered at birth, and to be protected from statelessness. South Africa, regardless of their documentation or legal status. It further makes provision for the establishment of Children’s Courts and processes to ensure that children in need of care and protection are provided with adequate care. 2.2: REGIONAL LAW African Charter on the Rights and Welfare of the Child 1999 (“ACRWC”): The BDRA gives effect to Sec 28(a) of the Constitution and provides for the registration of all children born in South Africa, whether to South African citizen parents or non-citizen parents. The principal legal instrument for the protection and promotion of children’s rights in Africa is the ACRWC. Like the Constitution - the ACRWC guarantees the right to legal identity, the right to birth registration and to be protected from statelessness. (See Article 6 and General Comment 6 of the African Committee of Experts on the Rights and Welfare of the Child General Comment on the interpretation of Article 6). South African Citizenship Act 88 of 1995 (“SACA”): African Charter on Human and People’s Rights 1981 (ACHPR): The SACA governs the acquisition and loss of South African citizenship. It states that South African citizenship is acquired by birth, by descent or by naturalisation. The ACHPR does not contain a direct or specific provision on the right to a nationality. However, the African Commission on Human and People’s Rights have declared that the right to a nationality is implied in Article 5 (i.e., the right to human dignity and recognition of legal status) and essential to the enjoyment of other fundamental rights and freedoms under the Charter. This was re-affirmed in Resolution 234 on the Right to a Nationality (2013). Birth and Deaths Registration Act 51 of 1992 (“BDRA”): South African Refugees Act 130 of 1998 (“Refugees Act”): The Refugees Act applies to all migrants who enter South Africa with the wish to apply for refugee status. It defines the standard that such applicants must meet to be granted protection and refugee status in the country. South African Immigration Act 13 of 2002 (“Immigration Act”): The Immigration Act sets out the conditions under which migrants (who have no claim to citizenship status or refugee status) can enter the country, stay in the country and leave the country. African Union Convention Governing the Specific Aspect of Refugee Problems in Africa 1969 (“OAU Refugees Convention): The OAU Refugees Convention is the primary document that addresses matters of refugees and asylum seekers at the regional level. 2.3: INTERNATIONAL LAW Children’s Act 38 of 2005 (“Children’s Act”): Universal Declaration of Human Rights 1948 (“UDHR”): The Children’s Act governs matters relating to the care, protection and well-being of children in The UDHR is the foundation for international human rights law. Article 15 unequivocally states www.lhr.org.za www.savethechildren.org.za | 11