Differentiating between married and unmarried fathers in relation to conferring a surname on a child, amounts to unjustified and unfair discrimination on the grounds of marital status, sex and gender

Constitutional Court of South Africa: While deciding the constitutional validity of S. 10 of the Births and Deaths Registration Act of 1992, the bench of the Court comprising of Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ., with a ratio of 8:2 declared S.10 of the 1992 Act unconstitutional in its entirety and therefore severed it from the Statute on the ground that the provision limited the ability of an unmarried father to confer his surname on his child. The Court further noted that there is no justification for differentiating between married and unmarried fathers in relation to conferring a surname on a child; thus S. 10 amounted to unfair discrimination on the listed grounds of marital status, sex and gender, which is prohibited by the South African Constitution.

Background

 In 2016, Menzile Lawrence Naki, (South African citizen) and Dimitrila Marie Ndovya, (a citizen of the Democratic Republic of Congo [hereinafter DRC]) sought to register the birth of their daughter, born in Grahamstown on 01-02-2016, with the Department of Home Affairs (Department) in Grahamstown. Before the child’s birth, Dimitrila travelled to and from South Africa to the DRC on a visitor’s visa. However, shortly before their daughter was born, her visa expired and due to her pregnancy, she could not renew the visa or travel back to the DRC.

Department of Home Affairs refused to register the child’s birth on the ground that the mother lacked a valid visa or permit and could not comply with certain Regulations on the Registration of Births and Deaths, 2014.

Legal Trajectory

 The couple brought an application to the High Court to review and set aside the Department’s refusal to register their daughter’s birth, and challenged the constitutionality of the relevant Regulations. The Centre for Child Law upon being admitted as an intervening applicant, sought orders declaring Ss. 9 and 10 of the 1992 Act and sub-regulations (3) and (5) of Regulations 3, 4 and 5 and Regulation 12(1) of the Regulations on the Registration of Births and Deaths, as unconstitutional.

The High Court held that, the first reference to “mother” in S.10(2) was intended to be “father”, and on their current formulation, Ss. 9 and 10 do not prohibit unmarried fathers from, registering the births of their children in the absence of the mother who gave birth to such children.

The Centre for Child Law appealed to the Full Court on the question of the constitutional validity of S. 10. The Full Court disagreed with the interpretation of the High Court and noted 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; thus the impugned provision prohibits a father giving notice of the birth of his child under his surname in the mother’s absence. The Full Court thus declared section 10 invalid and incompatible with the Constitution.

Submissions

The Centre for Child Law submitted that the differentiation between standards applicable to children born within or outside of wedlock is arbitrary; S.10 thus unlawfully discriminates against both unmarried fathers and children born out of wedlock on various grounds. As a result children born out of wedlock are not able to fully realise certain constitutionally guaranteed rights.

Department of Home Affairs and the Minister of Home Affairs did not oppose the confirmation of the constitutional invalidity of S.10. The Department further put forth before the Court that that S. 10 places restrictions on parents who are not married to each other, thereby unfairly discriminating against and impermissibly infringing the rights of both unmarried parents and the rights of children born to parents out of wedlock.

Significant Observations

Majority Opinion: The majority opinion was authored by Victor AJ (with Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring). It was noted that the bifurcated procedures of Sections 9 and 10 of the Births and Deaths Registration Act, presents an range of difficulties – firstly, which are faced by unmarried fathers in registering the births of their children in their own surnames, if the consent of the mothers has not been obtained or if the mothers are unavailable; and secondly the problem of undocumented mothers who live and give birth to children in South Africa and are unable to register the births of these children; and thirdly, another difficulty arises (as a result of the requirement) that parents who are non- South African citizens must produce a certified copy of a valid passport or visa.

Applying the test laid out in Harksen v Lane N.O. 1997 SCC OnLine ZACC 12 (Harksen Test), the majority noted that, the impugned law differentiates between married and unmarried fathers in relation to their capacity to confer their surname onto their new-born child when giving notice of their child’s birth. In addition, the impugned law differentiates between mothers (irrespective of their marital status) and unmarried fathers (as a category). It was stated in clear terms that, “No legitimate government purpose is advanced by distinguishing between married and unmarried fathers, at least not in respect of their capacity to register their new-born child’s birth and confer their surname on him or her. Nor is there any legitimate basis for this gendered differentiation of the conferral of a surname where a child automatically bears the mother’s surname but cannot assume their father’s surname.

The majority also deliberated that whether “marital supremacy is a necessity for the registration process for the surname of his child? Should the concept of marriage even factor in the registration process?” – as an answer to which the majority observed that  a marital neutral approach would better give effect to substantive equality as envisioned in the Constitution. The Court also noted that S. 10 impairs the dignity of both unmarried fathers, whose bonds with their children are deemed less worthy, and the children of unmarried parents- Section 10 is problematic because it perpetuates stereotypical gender roles and the assumption that child-care is inherently a mother’s duty.

Vis-à-vis the child, the Majority held that the concept of “illegitimacy” and differential rights for children born in and out of wedlock is inconsistent with the principle in S. 28(2) of the Constitution that the rights of the child are paramount.

It was further noted that S.10 also infringes a child’s right to not to be discriminated against on the grounds of social origin or birth. Thus the majority concluded that S.10 of the Act is contradictory with the rights to equality, dignity and the best interests of the child and invalid to the extent that it limits the rights of unmarried fathers to give notice of the birth of their child in their surname. The majority also declared that the proviso in S. 9(2) of the Act stating that the provision is “subject to the provisions of S.10” is severed from S. 9(2) by reason of the declaration of constitutional invalidity of section 10.

Dissenting Opinion: Mogoeng CJ, with Mathopo AJ (concurring) delivered a dissenting opinion on the matter. They observed that even though S. 10 of the 1992 Act discriminates against unmarried fathers on the basis of marital status, however the discrimination is reasonable, justifiable and fair -“The differentiation between married and unmarried fathers is not about stereotyping women as those who should bear the primary or sole responsibility for raising children, but about confronting the practical realities that unmarried South African mothers and children have to contend with most of the time”.

They observed that the provisions in question are grounded in the lived experiences of South Africans relating to some men who are happy to claim and give their surnames to children without any regard for a concomitant duty of care for them. “A child’s mother must therefore necessarily be asked to say: (i) whether the man claiming to be the father is indeed the father; and (ii) even if he is, whether he is the kind that would help advance the best interests of the child and give expression to the paramountcy of those interests or one whose somewhat formalised association with the child would be prejudicial to the child’s best interests”.

It was noted that declaring Sections 10 and 9 as unconstitutional will pose serious risks to the best interests of a child. They reasoned that, “This is not a case of needless, unfair discrimination on the basis of marital status, sex or gender. The impugned provisions are predicated on the need to give practical expression to the best interests of a child and their paramount importance”.

[Center for Child Law v. Director-General: Dept. of Home Affairs, [2021] ZACC 31, decided on 22-09-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

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