Victory for children after dads authorised to register births
In a landmark judgment that came to the rescue of unmarried fathers, the court said the children’s lack of recognition in the civil birth registration system exposed them to the risk of being excluded from the education system and accessing social assistance and health care.
The court ruled that section 10 of the Births and Deaths Registration Act was unconstitutional because it did not make provision for unmarried fathers - caring for a child as a single parent - to register the child’s birth under their surname, without the mother being present.
This followed an appeal lodged by the Centre for Child Law, represented by Lawyers for Human Rights.
The matter, which was originally heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of sections of the Act.
Regulation 12, which stated that an application for the birth certificate of a child born to unmarried parents could only be made by the mother of the child, was declared unconstitutional.
Section 10, which is linked to regulation 12, was not declared unconstitutional.
Section 10 regulates the provision of a surname to a child born to unmarried parents.
The section provides for the child to receive the mother’s surname and the father’s surname only at the joint request of the father and mother.
It also provides that the mother’s surname be used and that the father’s details could be inserted in the birth certificate, but with the consent of the mother.
The section does 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.
Zita Hansungule of the Centre for Child Law said there were several reasons a mother may not be involved in the birth registration process.
The mother may be dead, have absconded, be undocumented herself or cannot be located.
“Without a declaration of constitutional invalidity of section 10, unmarried fathers remained unable to register the birth of their child without the mother being present. The judgment handed down by the full bench cures this challenge.”
The court found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children a legitimate claim to nationality from birth - a birth certificate. It discriminates against children cared for by unmarried fathers and does not protect their best interests.
The High Court acknowledged that “lack of birth registration exacerbates marginalisation and potentially underscores inability to participate in development strategies aimed at socio-economic advancements for the achievement of productive and fulfilling lives”.
The high court declared section 10 unconstitutional and ordered that it be amended to allow for a notice of birth of a child to be given under the surname of an unmarried father. It has given Parliament 24 months to correct the unconstitutionality.
Anjuli Maistry, senior attorney at the Centre for Child Law, welcomed the judgment, and said its many clients were pleased that the court had recognised that barring the registration of births of children of unmarried single fathers was unconstitutional.
“The centre is also pleased that the court has recognised the enormity of the consequences for children who face this barrier.”
She said the inability to register a child’s birth not only infringed on the rights of children to have a name and a nationality, but also prevented these children from accessing other rights, such as social services, health care and education.
The application was prompted by the plight of a 2-year-old whose father is a South African citizen and her mother a Congolese citizen.
The mother does not have documentation permitting her to reside in South Africa.
Shortly after the child’s birth her parents tried to register her birth, but the Department of Home Affairs refused as the mother did not have a passport or valid visa.
The father was also not able to register the child in light of the provisions.
The court was told that there were many children in this position because Home Affairs refused to register them as their mothers were undocumented. All these children’s births until now remain unregistered and they are unable to access their South African citizenship and the rights linked to it.