Unmarried fathers win children’s surname battle

UNMARRIED fathers will now be able to register their children under their surname, in the absence of, or without, the mother’s consent.

In a landmark judgment yesterday, the Constitutional Court ruled that Section 10 of the Births and Deaths Registration Act was unconstitutional, in that it does not allow an unmarried father to register his child’s birth under his surname, unless the mother is present or gives consent.

The apex court found that the section differentiates between children born in and out of wedlock, and unfairly limits the right of an unmarried father to register his child’s birth under his surname.

The judgment read: “There are instances where a mother may be available but, for whatever reason, consent may not have been obtained. There are also instances where the mother may have disappeared and left the child with the father, and thus not be available to give consent. Second, there is the problem of undocumented mothers, who live and give birth to children in South Africa and are unable to register the births of these children. Third, another difficulty arises as a result of the requirement that parents, who are non-South African citizens, must produce a certified copy of a valid passport or visa.”

The background of the matter detailed that Menzile Naki – a South African citizen and member of the SANDF – and Dimitrila Ndovya met around the year 2008, in the Democratic Republic of Congo (DRC), while Naki was stationed in the DRC on a peace-keeping mission.

The two had married in the DRC, in accordance with the culture and customs of Ndovya, a citizen of the DRC.

One of their two children from the marriage was born in Makhanda (then

Grahamstown) on February 1, 2016.

Shortly before giving birth to her daughter, Ndovya’s visitors visa expired while in South Africa.

Following the birth of their daughter, they sought to register her birth with the Department of Home Affairs. The department refused to register her birth because Ndovya was not in possession of a valid visa or permit.

The applicant in the matter, Centre for Child Law, submitted: “Children are vulnerable members of society, even more so when they are without valid birth certificates. The latter are at greater risk of exclusion from accessing social assistance and healthcare, and crucially, access to their nationality. As children have a fundamental right to be registered immediately after their birth to acquire a nationality, it is not in the best interests of a child to be rendered stateless.”

Requests for comment from the Department of Home Affairs were unanswered by deadline.

In her judgment introduction, Acting Justice Margaret Victor wrote: “A surname connects us to our heritage, and roots us in history and family tradition. In many African cultures, names not only connect a person to their immediate family, but also convey a spiritual connection to one’s broader community, clan, and ancestors.”

Victor further discussed the term “illegitimate child”.

“This is implied by the reference to so-called children ‘born out of wedlock’, which continues to perpetuate the common law distinction between so-called ‘legitimate’ and ‘illegitimate’ children.

“This reference is a stark reminder that we, as a nation, are still grappling with outmoded legal terminology, which goes to the core of dignity and equality, not only for the child but also the unmarried father, and, indeed, the unmarried mother as well,” said Victor.