Home Affairs is in the process of drafting regulations to allow unmarried fathers to register the births of their children in the absence of the mother.
A 2018 High Court judgment, which was confirmed by the Constitutional Court last year September, ordered the department to do this.
Generally referred to as the Naki Judgment, it declared section 10 of the Births and Deaths Registration Act unconstitutional to the extent that it did not allow unmarried fathers to register the births of their children in the absence of the mothers of such children.
The Naki case referred to the matter concerning Menzile Lawrence Naki, a South African soldier who struggled to register his child’s birth under his surname.
Home Affairs first refused to register Naki’s childbirth on grounds that his partner, Dimitrila Marie Ndovya, was an undocumented Democratic Republic of Congo (DRC) national.
Home Affairs would also not allow him to register the birth without the mother, as per standing regulations in 2016. Naki and Ndovya’s daughter was born in Makhanda, Eastern Cape, in February 2016.
Naki and Ndovya married in the DRC, but their marriage was not recognised in South Africa. The Centre for Child Law took their matter all the way to the apex court.
In a majority judgment written by Acting Justice Margie Victor, the Constitutional Court confirmed that section 10 of the Births and Deaths Registration Act was unconstitutional.
“In conclusion, the section is manifestly inconsistent with the best interests of the child as well as her rights to dignity and equality and her right to a name and nationality from birth.
“The finding of unconstitutionality means that this Court ought to declare section 10 invalid to the extent that it limits the right of unmarried fathers to give notice of the birth of their child in their surname thereby unfairly discriminating against children born to unmarried parents.
“For this reason, section 10 is declared unconstitutional.”
Home Affairs Minister Aaron Motsoaledi has insisted that the Naki judgment was already being implemented.
Furthermore, Motsoaledi said in a reply to written questions in Parliament last week, regulations necessitated by the judgment were in the process of being developed.
“The Naki 2018 and Constitutional Court 2021 judgment was brought to the attention of all Provincial Managers for further communicating to local offices via WhatsApp on 23 September 2021,” said Motsoaledi.
“The Home Affairs front offices have been informed as per the attached WhatsApp message and the court order is being implemented by offices as alluded to in slide 9 of the presentation made to the Portfolio Committee on 2 March 2022.
“Further to this, the department is in the process of drafting regulations on the registration of births and deaths with the view to align it to the court order.”