Law stopping single fathers from registering children in their name is unconstitutional: ConCourt

A piece of law that prevents a single dad from registering his child’s birth under his surname unfairly discriminates against unmarried fathers on the basis of their marital status.

This is according to the Constitutional Court, which on Wednesday upheld the same ruling made in the high court in Makhanda - that section 10 of the Births and Deaths Registration Act was invalid and inconsistent with the constitution. The section prohibited an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent.

The Centre for Child Law had approached the Constitutional Court seeking an order that confirmed the high court judgment.

The judgment stems from the home affairs department’s refusal to register a child born to a South African father and a Democratic Republic of the Congo (DRC) mother.

In 2016, Menzile Lawrence Naki and Dimitrila Marie Ndovya wanted to register the birth of their daughter, who was born in Makhanda (formerly Grahamstown) that year.

Before their daughter was born, Ndovya travelled between SA and the DRC on a visitor’s permit. The visa expired during the same period. Ndovya could not renew the visa as her pregnancy was at an advanced stage.

The department of home affairs refused to register the birth of the child because the mother did not have a valid permit. The couple then approached the high court to challenge the department’s decision as well as the constitutionality of the relevant regulations.

The Centre for Child Law was admitted in the case as an intervening party.

Before the apex court, the centre contended that section 10 of the act unfairly discriminated against children and resulted in the children not being able to fully realise their constitutionally guaranteed rights.

The centre argued that the starting point in any matter concerning the rights of a child was the principle of making the child's best interests paramount.

The director-general of home affairs and the minister of the department conceded that section 10 was unconstitutional, but argued that the act allowed an unmarried father to register the child’s birth without the mother’s consent, but that the father could not do so under his surname.

In a majority judgment penned by acting justice Margie Victor, the court identified several problems with the section.

These are:

• The difficulty experienced by unmarried fathers in registering the births of their children in their surnames, if the consent of the mother has not been obtained or if the mother is unavailable;
• The problem of undocumented mothers who live and give birth to children in SA and are unable to register the births of these children; and
• The requirement that parents who are not South African citizens must produce a certified copy of a valid passport or visa.
• “The act and its regulations make no provision for the scenario where one of the parents is a South African citizen and the other parent is a foreign national who does not have a valid passport or visa,” Victor noted.

She said the section “potentially” infringed the rights of both the biological father and the child in two main respects.

“First, it potentially violates the rights of the child born to parents who are not married, particularly their constitutional right to a name and nationality at birth and the paramountcy principle.

“Second, it potentially violates the biological and unmarried father’s right not to be unfairly discriminated against on the basis of his marital status, sex and gender which are listed grounds in terms of section 9(3) of the constitution,” the judgment read.

Victor contended that it was not justifiable to distinguish between children born to married parents and children born to unmarried parents for the purpose of regulating what surname may be given to a child.

“Section 10 of the act undermines the role an unmarried father can play in this naming aspect. The parental rights of unmarried fathers are conditional in the sense that they are dependent on the status of their relationship with the mothers,” ruled Victor.

According to Victor, the status of being born out of wedlock penalises the child and the unmarried father, and the mother too.

“This differential treatment of children born out of wedlock is invidious and unconstitutional,” Victor found.

The majority judgment declared that section 10 of the act was invalid in its entirety and consequently severed.

“The proviso in section 9(2) of the act stating that the provision is 'subject to the provisions of section 10' is severed from section 9(2) by reason of the declaration of constitutional invalidity of section 10,” the judgment read.

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