Land­mark judg­ment al­lows sin­gle dads to reg­is­ter kids with­out moms’ pres­ence


CHIL­DREN with­out birth cer­tifi­cates are in­vis­i­ble, a full Bench of the Gra­ham­stown High Court has ruled.

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 its fa­ther’s sur­name or de­tails of its 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 could not 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 dis­crim­i­nated against chil­dren cared for by un­mar­ried fa­thers and did 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 mother a Con­golese cit­i­zen.

The mother does not have doc­u­men­ta­tion per­mit­ting her to live 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 re­mained un­reg­is­tered and they were un­able to ac­cess their South African cit­i­zen­ship and the rights linked to it.

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