Unmarried dads should be allowed to register children`s births, court rules

Source: Groundup, 01/01/1970

The matter was initially raised by the Legal Resources Centre
(LRC), with the support of the Centre for Child Law, in a `public
interest` application against the minister and director general of
Home Affairs.
They were acting on behalf of a South African National Defence
Force (SANDF) soldier who met, and fell in love with, a Congolese
woman while posted on a peacekeeping mission in her country. They
married according to customary law in the DRC.
She, along with their two children, came to South Africa on a
visitor`s permit in 2015, where she gave birth to their third
child.
Refused to register birth
Despite the fact that the child was born in South Africa and the
father was South African, Home Affairs refused to register the
birth because the mother was `undocumented`.
In the High Court in 2018, acting judge Apla Bodlani declined to
declare the sections of the act unconstitutional. Instead, he
ordered amendments to the wording of some of the regulations.
The LRC was happy with Bodlani`s ruling. In a statement at the
time, it said it was a victory for single fathers trying to
register births when the mother is foreign and undocumented or
absent or had abandoned the children.
But the Centre for Child Law was intent on overturning Section 10,
which 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.
Home Affairs did not oppose the appeal.
Judge Sunil Rugunanan, who penned the appeal judgment, said the
case affected vulnerable members of society and `a multitude of
child cases` born to unmarried fathers.
He said children without birth certificates were `invisible` and
were effectively denied support and assistance necessary for their
positive growth and development, including education and access to
social grants.
`The numerous cases in the (centre`s) papers evoke empathy if one
comprehends the extent to which lack of birth registration
exacerbates marginalisation,` said the judge.
`Discriminatory`
Section 10 posed a bar that was discriminatory not only to the
fathers of children born out of wedlock, but to the children
themselves on the grounds that were arbitrary.
`A law that engenders discrimination with the potential for
consequences of the enormity shown, cannot be said to be in the
best interests of the child, which is paramount.`
He said the `reading in`, as ordered by Bodlani, had only a
limited effect and did not address the fundamental problem that
Section 10 in its entirety did not provide a mechanism for a child
born out of wedlock to be registered in the surname of his or her
father where the mother was absent.
He declared the section unconstitutional, giving the legislature
two years to amend it to ensure it is `constitutionally compliant`
and referred the order to the Constitutional Court for
confirmation.
The centre said: `The judgment affirms the fact that every child
has the constitutionally enshrined right to a name and nationality
from birth and their best interests are of paramount importance in
every matter concerning the child.`
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