Court delivers good news for single fathers

The Eastern Cape High Court this week delivered a landmark judgment declaring part of the Births and Death Registration Act unconstitutional and invalid.

While it still has to be confirmed by the Constitutional Court, the judgment paves the way for a single father to be able to register his child’s birth without the mother having to be present or give her permission.

In its current form, section 10 of the act only provides for a child born out of wedlock to be registered under his or her father’s name at the joint request of both parents or with the written consent of the child’s mother.

In handing down the judgment, Judge Sunil Rugunanan – with two judges concurring – found this discriminated against unmarried fathers.

“This directly violates the affected father’s right to equality … and is tantamount to unlawfully discriminating against him,” the judge said. “By extension, the bar has the effect of denying children with a legitimate claim to a nationality from birth a birth certificate; and in this manner it discriminates against children born to unmarried fathers on grounds that are arbitrary.”

The case first came before the court in 2017 when the Legal Resources Centre (LRC) brought an application against the department of home affairs on behalf of a South African man who was unable to have his child’s birth registered because his customary wife was an undocumented Congolese national.

The Centre for Child Law was subsequently joined and, in 2018, Acting Judge Apla Bodlani ordered that the regulations for the registration of births and deaths be amended, but stopped short of finding any defects with the act.

The Centre for Child Law, represented by Lawyers for Human Rights, then took the case on appeal.

“Section 10 presents a bar when it comes to notifying the birth of [an unmarried father’s] child under his surname in the mother’s absence. Conceivably, such absence (or want of consent) might be occasioned by any number of reasons: the mothers in question are not capable or willing to give their consent either because they are themselves undocumented, or they are unwilling, or perhaps have absconded, or died either during childbirth or later, or are unable to be located,” said Rugunanan on Wednesday in upholding the appeal.

The judge said children without birth certificates were “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 healthcare. They are effectively denied support and assistance considered necessary for their positive growth and development.”

He pointed to the numerous cases the Centre for Child Law had highlighted in court.

“Lack of birth registration exacerbates marginalisation and potentially underscores inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives,” Rugunanan said.

He also said there was “undoubtedly a disproportionate severity of such consequences for children from indigent families”.

Anjuli Maistry, a senior attorney at the Centre for Child Law, welcomed the judgment.

“The centre and our many clients in this position are pleased that the court has recognised that barring the registration of births of children of unmarried single fathers is arbitrary and unconstitutional. The centre is also pleased that the court has recognised the enormity of the consequences for children who face this barrier.”

Fathers 4 Justice’s Gary Da Silva on Thursday described the judgment as “phenomenal news”.

“From a gender equality point of view, it’s amazing,” Da Silva said. “It’s definitely a step in the right direction and coincides with how the Children’s Act outlines parental rights and responsibilities.”

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