Constitutional Court of South Africa: The Bench of Victor AJ (Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring) and Mogoeng CJ (Mathopo AJ dissenting) expressed that,
Children born to parents outside the marital bond are blameless, yet the retention of Section 10 of the Act serves to harm children born outside of wedlock. The status of being born out of wedlock, in effect, penalises the child and the unmarried father, and of course the mother too. This differential treatment of children born out of wedlock is invidious and unconstitutional.
Crux of the Matter
A surname connects us to our heritage and roots us in history and family tradition. Despite South Africa having one of the most progressive Constitutions in the world, there remains a piece of legislation in which the registration of children born out of wedlock is classified as a separate category.
Section 10 of the Births and Deaths Registration Act4 (Act) bears the heading “Notice of birth of child born out of wedlock” and provides for a bifurcated registration procedure between children born in and out of wedlock.
Issue in the present case was the interplay between Sections 9 and 10 of the Act
Lets’ have a look at the provisions.
Section 9 of the Act provides for notice to be given of a child born alive in the following circumstances:
“(1) In the case of any child born alive, any one of his or her parents, or if the parents are deceased, any of the prescribed persons, shall, within 30 days after the birth of such child, give notice thereof in the prescribed manner, and in compliance with the prescribed requirements, to any person contemplated in section 4.
(1A) The Director-General may require that biometrics of the person whose notice of birth is given, and that of his or her parents, be taken in the prescribed manner.
(2) Subject to the provisions of section 10, the notice of birth referred to in subsection (1) of this section shall be given under the surname of either the father or the mother of the child concerned, or the surnames of both the father and mother joined together as a double barrelled surname.
(3A) Where the notice of a birth is given after the expiration of 30 days from the date of birth, the birth shall not be registered, unless the notice of the birth complies with the prescribed requirements for a late registration of birth.”
Section 10 of the Act provides:
“(1) Notice of birth of child born out of wedlock shall be given—
(a) under the surname of the mother; or
(b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.
(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection (1)(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”
The array of difficulties arises from Section 10 of the Act, firstly by the unmarried fathers in registering the births of their children in their own surnames, if the consent of the mothers had not been obtained or if the mothers were unavailable.
Secondly, there is a problem of undocumented mothers who live and give birth to children in South Africa and are unable to register the births of their children.
Thirdly, 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.
The Acts and its Regulations make no provision for the scenario where one of the parents is a South African citizen and the other is a foreign national who does not have a valid passport or visa.
The present matter required analysis to determine whether Sections 9 and 10 further the constitutional goal of equality and dignity for unmarried parents and their biological children.
How did the above issues arise?
Respondents 3 and 4 married in the Democratic Republic of Congo in accordance with the culture and customs of respondent 4, a citizen of the DRC. The said marriage was not registered because customary marriages are not registered in the DRC. Two children were born, one of whom was their daughter, born in Grahamstown. Before her birth, respondent 4 travelled to and from South Africa on a visitor’s visa, and shortly before the daughter’s birth, respondent 4’s visa got expired while in South Africa and due to her being in the advanced stage of pregnancy, she could neither apply for a new visa nor travel back to DRC.
The birth of the daughter could not be registered as respondent 4 was not in possession of a valid visa or permit and could not comply with Regulations 3(3)(f),6 4(3)(f)7 or 5(3)(f),8 regardless of the fact that their daughter was a South African citizen.
Until respondent 4 complied with regulations, her daughter’s birth could not be registered and further, the department refused to recognize their customary law marriage, hence the daughter had to be treated as a child born out of wedlock.
Analysis and Discussion
In Court’s opinion, Section 10(1)(a) does enable an unmarried father to give notice of birth without the mother’s consent or presence. The only limitation imposed by Section 10 (in its entirety) relates to the father’s capacity to confer his surname on the new-born child. As things stand, an unmarried father (unlike a married father) can only confer his surname when giving notice of birth if he follows the procedures set out in sub-sections 10(1)(a) and 10(1)(b).
Unmarried fathers’ rights to equality and non-discrimination
Section 10 of the Act undermines the role an unmarried father can play in the naming aspect. The parental rights of the unmarried father are conditional in the sense that they are dependent on the status of their relationship with the mothers.
Further, the said Section provides for differential treatment of an unmarried father. The Children’s Act recognises the role of both parents in bringing up a child. It is both parents that bear the primary responsibility to care for their child, as is provided for in the Children’s Act. And it is a child’s right to bask in the parenting of both parents, irrespective of their marital status. Section 10 is problematic because it perpetuates stereotypical gender roles and the assumption that child-care is inherently a mother’s duty.
The unmarried father and the child of unmarried parents are a vulnerable group who are affected by the discrimination.
It was clear that Section 10 constitutes unfair discrimination against unmarried fathers on the basis of sex, gender and marital status. Furthermore, the said discrimination cannot be justified when considering the egregious impact, it had on:
(i) an unmarried father’s dignity;
(ii) the manner in which it compromises his relationship with his newly born child; and
(iii) the way it entrenches sexist and gendered stereotypes about the parental role of father’s vis à vis mothers.
Unmarried fathers’ right to dignity
The Bench stated that the unmarried father, in asserting his right to register his child, is entitled to the recognition and affirmation of his dignity.
Court added that,
“…differential treatment of children born out of wedlock is invidious and unconstitutional. This differential treatment cannot be justified.”
The child’s right to equality and to be free from unfair discrimination
The section sediments the long-held distinction between “legitimate” and “illegitimate” children in our law which is abhorrent to our constitutional values of human dignity, ubuntu and substantive equality.
The applicant submitted that in the present matter, appropriate relief demanded more than a mere declaration that the impugned provisions were inconsistent with the Constitution and therefore invalid.
The finding of unconstitutionality means that this Court ought to declare Section 10 invalid to the extent that it limits the right of unmarried fathers to give notice of the birth of their child in their surname thereby unfairly discriminating against children born to unmarried parents.
In view of the above, Section 10 was declared unconstitutional. In addition, however, the proviso in Section 9(2) which states that the provision is “subject to the provisions of section 10” must consequently also be severed, but the rest of Section 9 remains intact.
MOGOENG CJ (Mathopo AJ dissenting)
An unmarried father was not precluded from registering his child. On the contrary, he could even register the child under his surname or under a double-barrelled surname. The only difference was that the impugned provisions prescribed that that be conditional upon compliance with certain requirements. The central or dominant feature of those differential dispensations was that unlike in the case of a married man, the mother of the child had to signify approval. The contention was that because they were both fathers they should without more enjoy the exact same entitlements. That, therefore, was a demand for unbridled or absolute equality or identical treatment in all circumstances purely on the basis that they were after all men and fathers. Failure to adopt that approach did, in the view of the applicant constitute unfair discrimination on the basis of marital status, sex and gender and was detrimental to the best interests of a child.
There was therefore nothing really about the said provisions that stood in the way of the remedy sought by the “unmarried” parents.
Adding to the above, it was expressed that the Act, Sections 9 and 10 in particular, must thus be understood within the context of the ease with which fatherhood is ascertainable in the case of a married couple, the legal obligations that flow to a child by operation of the law and the risks that flow from allowing any man known or claiming to be the father to register that child’s birth without the mother’s consent.
While it is true that the Act does not accord unmarried fathers the unconditional right to register the birth of their children, that denial constitutes discrimination and does in reality constitute a disadvantage, that is a consequence of their choice to remain unmarried. The Act cannot therefore be said to impair their rights to equality and dignity or sense of equal worth. It does nothing to preclude anybody from getting married and accessing the legal rights, privileges and entitlements that flow from marriage.
Right to Dignity
An unmarried man’s right to equality and dignity in relation to a child is worth much more than the entitlement to register the birth of a child and attach his surname to the child. And the right to dignity cannot be adversely affected only because an unmarried father has certain requirements to meet in order to qualify for the entitlement to register his child in the name of the mother or under his surname.
Best interests of a child
One of the inherent dangers of giving carte blanche to any man, who is or claims to be the father of the child but is unmarried to the mother, to register the birth of a child without the mother or a verifiable and reliable next-of-kin confirming his fatherhood and parental credentials, is human trafficking.
Further, it was added on careful analysis, that,
A woman and a man who are either in an unformalised relationship, and only got intimate once or a few times resulting in the birth of a child, or a rapist who has subsequently developed a curious interest in the child born out of his criminal and traumatic self-imposition on the woman all fall in the same category of unmarried fathers. That does not or ought not to conduce to the ready acceptance of a child being registered in the name of a man who claims to be the father, without any or particular regard for the views or consent of the one who carried the pregnancy through to birth.
Hence, Section 10 is fundamentally in the best interests of a child and gives recognition to the constitutional demand to treat those interests as paramount.
A reading of Sections 9 and 10 in a way that keeps them within constitutional bounds, does not expose a child to known or foreseeable risks. It protects and advances the best interests of a child and recognises the paramountcy of those interests. Sections 9 and 10 should thus be left intact.
The declaration of constitutional invalidity of Section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown, is confirmed.
(a) It is declared that Section 10 of the Act is invalid in its entirety and consequently severed from the Act.
(b) 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.[Center for Child Law v. Director-General: Dept. of Home Affairs,  ZACC 31, decided on 22-09-2021]
Advocates before the Court:
For the Applicant: J Bhima and N Kekana instructed by Lawyers for Human Rights
For the First and Second Respondents: I Jamie SC and S Freese instructed by State Attorney, Gqeberha