A recent decision by South Africa’s apex court has put the focus on an antiquated law that prevented children of unmarried parents accessing birth registration in the same way that children of married parents do. It’s a crucial issue for the children affected and their families, because the law as it previously stood was a serious obstacle and the potential cause of statelessness for those denied birth registration. As the writers explain, the decision of SA’s Constitutional Court affirms the intrinsic worth and right to birth registration for all children in SA and also does away with several archaic concepts.
"Children are vulnerable members of society, even more so when they are without valid birth certificates” - Victor AJ in Centre for Child Law v Director General: Home Affairs
Birth registration plays an often unseen but fundamentally important part in the life of a child. Without a birth certificate, children can have difficulty in accessing their rights, become outcasts in their own country, struggle to feel like they belong, and grow up to be disenfranchised and marginalised adults. Crucially, without a birth certificate, children are at a heightened risk of statelessness. While birth registration in itself does not confer nationality, the official record of the child’s place of birth and parentage provides critical evidence of the facts that enable a child to assert their right to a nationality. Lack of birth registration has been identified as one of the primary causes of childhood statelessness and generational statelessness in Southern Africa.
South Africa has ratified the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Both treaties and the SA Constitution, clearly articulate the right of every child to birth registration. The government boasts a reported birth registration rate of nearly 90%, yet thousands of children born in SA struggle to secure their right to birth registration due to barriers in laws, practice and policies.
In a recent progressive judgment, the Constitutional Court of SA struck down an antiquated law that prevented children of unmarried parents from accessing birth registration on an equal basis with children of married parents.
This is after the Department of Home Affairs refused to register the daughter of Menzile Naki (a citizen of SA) and Dimitrila Ndovya (a citizen of the Democratic Republic of Congo), who was born in SA. The couple was in fact married in accordance with the culture and customs of the DRC, but the marriage was not “registered” and therefore not recognised in SA. The Department dictated that the registration should take place in terms of Section 10 of the Birth and Deaths Registration Act, which prescribed the birth registration process for children “born out of wedlock”. In terms of this section, a child born to unmarried parents should be registered by the mother or at the joint request of the mother and father, but the Department still refused to allow Ndovya to assist with the registration on the basis that her visa had expired and she could not comply with the regulations.
According to the regulations, it was also compulsory for parents who need to register their children to hold valid documentation in the form of an ID or a passport and visa. Prior to the birth of their child, Ndovya travelled to and from SA and the DRC to renew her SA visa. However, the visa expired shortly before she gave birth and this time she could not travel to renew it because she was at an advanced stage of her pregnancy.
The parents, assisted by the Legal Resources Centre, successfully reviewed the refusal of the Department of Home Affairs to register their daughter in the High Court. Furthermore, the High Court declared the regulations pertaining to documentation unconstitutional to the extent that they barred children of undocumented parents from accessing birth registration. This is significant in a country where access to documentation is an endless struggle, largely owing to corruption, maladministration and huge backlogs at the Department of Home Affairs.
The Centre for Child Law, represented by Lawyers for Human Rights, was admitted as an intervening party in the High Court and sought a further order to challenge the constitutionality of the bifurcated registration procedure between children of married parents and children of unmarried parents, created by Section 10 of the Birth and Deaths Registration Act. Section 10 stated that a child born to unmarried parents should be registered by the mother or at the joint request of the mother and father, but did not make provision for an unmarried father to register his children where the mother is unwilling or unable to do so. The mother would be unable to register the child in instances where the child is a maternal orphan or has been abandoned by the mother and left in the care of the father. The mother would also be unable to assist with registration if she is undocumented and cannot produce a valid ID, passport or visa, as demonstrated in the case of Naki and Ndovya.
The High Court declared Section 10 unconstitutional and invalid and this order was confirmed by the Constitutional Court.
The Constitutional Court found that Section 10 constitutes unfair discrimination against unmarried fathers on the grounds of sex, gender and marital status. The Court further held that this law was problematic because it perpetuated gendered and sexist stereotypes about a father’s caregiving role vis-à-vis a mother’s, entrenching a long discarded maternal preference rule. The Court noted that the impact on unmarried fathers and their children was clear – the law undermined the ability of unmarried fathers to be active in their children’s lives and the explicit reference to children “born out of wedlock” propagated the societal stigma attached to unmarried parents and their children. This impaired the dignity of unmarried parents and their children.
The Court recognised that the term “out of wedlock” was just as abhorrent as the term “legitimate child” or “illegitimate child”. To maintain such a distinction between children of married parents and children of unmarried parents was not only in violation of the best interests of the child, but also offended the constitutional values of human dignity and equality and conflicted with the revered principle of Ubuntu, which places a “strong emphasis on family obligations”. The notion of “family” as a nuclear family stigmatises single parent headed households and all who fall outside of this narrow binary construction of a family. Ruling in favour of a gender-neutral and marital-neutral approach, the Constitutional Court ordered that Section 10 of the Birth and Deaths Registration Act is excised from the Act in its entirety.
This judgment is crucial not only because it does away with discriminatory and outdated laws that exacerbate the risk of childhood statelessness; but it also affirms the intrinsic worth and right to birth registration for all children in SA.
It is, however, worth noting that there are a number of barriers to birth registration in South Africa that remain unaddressed. The Department of Home Affairs still requires parents to produce valid documentation in the form of an ID or a passport and visa for birth registration. While fathers can now register their children, the exorbitant cost of DNA testing makes it impossible for poor families to meet the proof of paternity requirement. There is also a growing trend to withhold proof of birth against payment of maternity fees in hospitals and clinics. Proof of birth is an essential part of the birth registration process; without it, birth registration is almost impossible. It is well documented that difficulties related to birth registration and the acquisition of personal identification (PID) are largely regarded as problems specific to low-income countries and this speaks to the indignity of poverty and living under impoverished conditions.
In essence, more can and should be done to achieve universal birth registration and to put an end to childhood statelessness in SA.
* Co-written by Thandeka Chauke, Statelessness Project Head (Lawyers for Human Rights) and Tšhegofatšo Mothapo, Statelessness Legal Researcher (Lawyers for Human Rights)