Mubake v Minister of Home Affairs (72342/2012) [2015] ZAGPPHC 1037 38. In this case, the High Court granted an order declaring that the definition of “dependent” under the Refugees Act48 is not limited to children in the care of their parents, but also includes children who have been separated from their parents and are in the care of other adult asylum seekers or refugees. The case concerned five children fleeing conflict in the DRC, who were orphaned or abandoned by their parents and in the care of aunts or uncles seeking asylum in South Africa. The DHA refused to register and document the children as dependents of their aunts or uncles in the absence of formal proof of guardianship. The court found that it was not in the best interests of the children to leave them undocumented for an indeterminate period and ruled that DHA should immediately register and document them as dependents of their aunts or uncles and the process to obtain proof of guardianship could follow. The court further ordered the DHA to disseminate a departmental directive to all RROs to give effect to this order in all cases of separated migrant children. 39. In practice, the DHA still insists on proof of guardianship and does not consider the fact that applications for guardianship or foster care are often lengthy and complicated, particularly for asylum seekers and refugees, creating risks of statelessness among children who are separated from their parents.49 Recommendations 40. Based on the above information, the co-submitting organisations urge reviewing States to make the following recommendations to South Africa: I. Regularise the status of all USMC in the care system who are at risk of statelessness by providing them with permanent residence status and a pathway to South African nationality through a no fee, child friendly dispensation in terms of section 31(2)(b) of the Immigration Act. II. Train and sensitise Children's Court Magistrates and social workers on documentation and rights of USMC in line with their statutory duty. III. Develop and implement child friendly application procedures at all home affairs offices including refugee reception offices for USMC. IV. Draft and disseminate a national directive requiring the provision of reasons and an appeal process if applications to acquire South African nationality are rejected. V. Ensure every child’s right to immediate, free birth registration and certification for all children, regardless of their parents’ identity, status, or documentation, in accordance with CRC Article 7. More specifically: 48 Section 1 and Section 3(c) See for example this recent matter by LHR, where it took 3 years to obtain a foster care order in order to get two migrant children documented under their aunt: https://www.lhr.org.za/lhr-news/press-statement-victory-for-family-unit-and-forcibly-displaced-migrantchildren/ 49 13