Notice of birth by unmarried father

In Centre for Child Law v Director-General: Department of Home Affairs and Others 2020 (8) BCLR 1015 (2020 (6) SA 199) (ECG), s 10 of the Births and Deaths Registration Act invalid and inconsistent with the Constitution as an unmarried father can’t give notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Constitutional law - Notice of birth by unmarried father: In Centre for Child Law v Director-General: Department of Home Affairs and Others 2020 (8) BCLR 1015 (2020 (6) SA 199) (ECG) the Full Court of the ECG in Grahamstown, declared s 10 of the Births and Deaths Registration Act 51 of 1992 (the Act) invalid and inconsistent with the Constitution to the extent that it prohibits 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. Section 9(1) of the Act provides for the notification of the birth of any child ‘born alive’. Section 9(2) provides that this notification is ‘subject to the provisions of s 10’. Section 10 deals with the notification of the birth of a child born out of wedlock and made the exercise by an unmarried father of his right under s 9(1) contingent on either the mother’s presence or her consent.

The third respondent met the fourth respondent, a foreign national, while he was doing military service in the Democratic Republic of Congo (DRC). The couple were married in the DRC according to local traditions. The marriage was not registered, and no marriage certificate was issued. Customary marriages are apparently not registered in the DRC and the marriage is also not recognised by the South African authorities. Two children were born of the couple’s relationship. The third respondent returned to South Africa (SA) and the fourth respondent followed him on a three-month visitor’s visa. When her visa expired, she was heavily pregnant and was unable to travel back to the DRC and not able to apply for a new visa. She gave birth to a third child in SA. The couple applied to have the birth of their third child registered but the Department of Home Affairs refused to register the child on the basis that fourth respondent lacked a valid visa and could not comply with certain regulations made in terms of the Registration of Births and Deaths Act.

The third and fourth respondents approached the High Court for relief. The Centre for Child Law was admitted as an intervening party and sought orders declaring ss 9 and 10 of the Act unconstitutional to the extent that they do not allow unmarried fathers to register the births of their children in the absence of the mothers. The High Court refused to declare ss 9 and 10 of the Act unconstitutional but declared sub-regulations (3)(f) and (i), and sub-regulation (5) of Regulations 3, 4 and 5, and sub-regulation (1) to Regulation 12 as constitutionally invalid. The High Court ordered the reading in of certain words in order to cure the defects in the sub-regulations.

The Centre for Child Law appealed to the Full Court. The Full Court found that the High Court’s interpretation of s 9 failed to consider that the notification of any child born alive is subject to the provisions of s 10. The Full Court found that, even though s 9 empowers an unmarried father to give notice of his child’s birth, the exercise by an unmarried father of his right under s 9(1) is contingent on either the mother’s presence or her consent, in terms of s 10. The Full Court declared s 10 to be invalid and inconsistent with the Constitution, and it suspended the declaration of invalidity and ordered that in the interim certain words were to be read into the section.

In Centre for Child Law v Director General: Department of Home Affairs and Others 2022 (4) BCLR 478 (CC), the CC by a majority (per Victor AJ with Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron and Tshiqi JJ concurring) sets out reasons for finding that s 10 differentiated unjustifiably between married and unmarried fathers in relation to registration of the birth of a child in the surname of the father, which amounted to unfair discrimination. The retention of s 10 of the Act would undermine the unmarried father’s right to dignity. It implied that an unmarried father was not entitled to be treated as worthy of registering the birth of his child with his surname in the mother’s absence merely because he and the child’s mother were not married. Section 10 was manifestly inconsistent with the rights to equality, dignity and the best interests of the child and had to be severed in its entirety. Because s 9(2) stated that it was ‘subject to the provisions of s 10’, that proviso had similarly to be severed. An order was made that the declaration of invalidity would take effect from the date of the order.

A dissenting judgment (per Mogoeng CJ with Mathopo AJ concurring) set out reasons for finding that the differentiation by s 10 was reasonable and justifiable and that ss 9 and 10 of the Act were capable of being read in a constitutionally compliant manner.

See ‘The Law reports’ 2021 (Jan/Feb) DR 28 for the ECG judgment.

Merilyn Rowena Kader
Legal Editor at LexisNexis