Unmarried dads can now register their children's birth

The legal ban on an unmarried father registering his child’s birth has been lifted by three judges of the high court in Makhanda, changing the status of countless “invisible” children whose births are not reflected on the population register.

The court has declared as unconstitutional the discrimination against unmarried fathers reflected in section 10 of the Births and Deaths Registration Act, which “implicitly bars the unmarried father of a child born out of wedlock” from registering the child under his surname if the mother is absent.

In various possible scenarios envisaged in the current law, the involvement of the mother is required, either through her actual presence or by giving her consent.

The court has changed the wording of the law to incorporate the right of an unmarried father to notify the birth of his child under his surname.

Judge Sunil Rugunanan suspended the order for two years to allow the legislature to correct the defect in the law, and also referred the order of constitutional invalidity to the Constitutional Court for confirmation.

The ruling will make a huge difference for many South African children, including those born of a parent who is a foreign national.

The court acknowledged its order will affect many vulnerable members of society, especially unregistered children born to unmarried fathers.

The Centre for Child Law at the University of Pretoria, which lodged the appeal, welcomed the removal of the ban, with senior attorney Anjuli Maistry stating the ruling meant “children in this position can have their births registered and will no longer have to stumble across the many hurdles that come in the way of an undocumented child”. 

The case tracked the experiences of a Makhanda couple after the birth of their second child, as their joy turned to frustration when the local office of the department of home affairs refused to register the new birth.

The couple met and fell in love in the Democratic Republic of Congo (DRC), where the father, a member of the SA National Defence Force, was deployed as a peacekeeper.

They were married by traditional rites in the DRC and, after the husband returned to SA, his wife visited him, where she gave birth to their second child in Makhanda in 2016.

The couple may not be named to protect the identity of the child.

Under current laws, not being registered on SA’s population register has significant, potentially lifetime implications for a citizen of the country.

Even if an individual’s citizenship is confirmed in terms of the Citizenship Act, this law still requires birth registration.

The judges found when an undocumented child reaches adulthood and cannot give notice to officials of the birth of their child because of their undocumented status, the generational statelessness is repeated in the newborn child.

“Children without birth certificates are ‘invisible’. Their lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from accessing social assistance and health care. 

“They are effectively denied support and assistance considered necessary for their positive growth and development,” the judges said.

They found many child cases listed in the application, including those reflecting generational statelessness, showed “the extent to which lack of birth registration exacerbates marginalisation.

It also reflected an individual’s inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives.

The judges in Makhanda confirmed  “a multitude” of similar cases, where home affairs officials had refused to register a birth under the regulations.

The latest judgment stems from the Centre for Child Law's  appeal against a 2019 ruling by acting judge Apla Bodlani in which he dismissed the challenge to the law’s constitutional validity.

Bodlani held the births and registration law did “not forbid unmarried fathers to register the births of their children in the absence of the mother”.

But the judges on appeal said it was not enough for the lower court to “read in” a constitutional interpretation of the law.

Bodlani had already declared as unconstitutional regulation 12(1) published in 2014, which stated that only the mother of a child born to unmarried parents may submit a notice of birth to the department. - DispatchLIVE