Pretoria - While unmarried fathers are now able to register their children under their surname without the mother’s consent, this does not mean they can automatically alter the details on an existing birth certificate.
This is a process provided for in separate sections of the Births and Deaths Registration Act, the Centre for Child Law explained.
Last month, the Constitutional Court handed down a judgment which declared Section 10 of the act invalid and not in line with the Constitution.
The section previously did not make provision for a child to receive their father’s surname or details of their father on their birth certificate without the mother’s involvement in cases where the mother is deceased, has absconded, is undocumented or cannot be located.
Since then, the Centre for Child Law and Lawyers for Human Rights have noted a misinterpretation of the judgment. It seems that the judgment has been interpreted by some to mean that a child’s name can be changed if they have been registered and have a birth certificate (alteration of details on a birth certificate).
That was not what the case and the judgment was about, the centre’s Zita Hansungule said.
The Constitutional Court judgment declared Section 10 of the act unconstitutional because it did not allow unmarried fathers to register the births of their children in their name when the mother could not do so or was unwilling to do so, she said.
That left children without birth certificates.
“The declaration of Section 10 being unconstitutional, and its severance from the act, ensures that when a mother is not able or willing to register the birth of a child the unmarried father will still be able to do so.”
Hansungule said that if an unmarried father wanted their details to be inserted in an existing birth certificate, they would have to follow the process set out in the provisions of the legislation.
There is a section which states that the father must, with the consent of the mother, apply to the Department of Home Affairs for such information to be inserted in the birth certificate.
The department will, after reviewing the application, amend the registration of the birth of the child, by recording that the applicant acknowledges that they are the father of the child and enter the prescribed particulars of such person in the registration of the birth of such child.
“The purpose of these provisions is to accommodate unmarried fathers who, for whatever reason, did not participate in the initial notification of the birth process to be identified and acknowledged as fathers but still wish to be so.”
She said that in the post-notification for a birth certificate, an unmarried father may apply to the director-general of Home Affairs to have himself recognised on the registration of the child’s birth certificate and to have the National Population Register updated to reflect such an amendment.
If the mother refused to consent, the unmarried father may seek relief from the High Court, which is the upper guardian for children.
If the intention was to alter the surname of the child, there were sections in the act which provides that any parent or any guardian of a child whose birth has been included under a specified surname in the population register may apply to Home Affairs for the alteration of the surname of the child.