Section 10 of the Act provided for the notice of birth of a child born out of wedlock to be given under the surname of either the mother or the person acknowledging himself as the father. The following scenarios emanated from section 10:
- As a default position, the birth was registered under the mother’s surname;
- Where a joint request with the mother was made, and fatherhood had been accordingly acknowledged, the birth could be registered under the father’s surname; and
- Where the mother’s consent was obtained, and fatherhood had been accordingly acknowledged, the child could adopt the mother’s surname and the father’s particulars would appear in the birth register.
Additionally, section 9(2) of the Act provided for the notice of birth to be given under the surname of either parent, or a double-barreled surname of both parents.
The consequences of section 10 and section 9(2) were that unmarried fathers could not register the birth of their children under their surname unless they did so through a joint request with the biological mother or with her consent. Therefore unmarried fathers could never register the births of their children in their surname without the biological mother’s involvement. This was not the position for married father’s who could independently register their children’s birth under their surname. However, the effect of this judgment is that unmarried fathers are no longer treated differently from married fathers when registering the births of their children.
Facts of the case
Mr N, a South African citizen, and Ms N, a foreign national from the Democratic Republic of Congo ("DRC") were married in terms of the customary laws of the DRC. This marriage was not recognised as a valid marriage in South Africa. The couple approached the Department of Home Affairs ("Department") to register the birth of their daughter, who was born in South Africa. However, as a result of their customary marriage not being recognized as a valid marriage in South Africa, their daughter was treated as a child born out of wedlock; and Mr N as an unmarried father, for purposes of registering the birth with the Department.
Ms N’s visa expired while she was in South Africa, and that was still the case when she and Mr N applied to register their daughter’s birth. The Department therefore refused to register the birth of their daughter because Ms N was not compliant with the regulations under the Act which require a certified copy of a valid visa or permit to accompany the notice of birth application.
Aggrieved by the Department’s decision, the parents approached the Eastern Cape Division of the High Court ("High Court") seeking to:
- review and set aside Department’s decision to refuse to register their daughter’s birth, or alternatively, the Department’s failure to take a decision on the application to register her birth;
- compel the Department to register their daughter’s birth;
- challenge the Department’s interpretation of the regulations under the Act requiring a certified copy of a valid visa or permit to accompany the notice of birth;
- challenge the constitutionality of the abovementioned regulations.
The High Court granted the parents relief regarding the registration of their daughter’s birth. The Centre for Child Law ("Centre"), which was admitted as an intervening party to the proceedings, sought orders declaring sections 9 and 10 of the Act unconstitutional, not the parents, to the extent that they did not allow unmarried fathers to register the births of their children in the absence of the mothers of such children.
The High Court, in this particular matter, was faced with the issue of whether the impugned regulations of the Act prevented unmarried fathers from registering the births of their children in the absence of the biological mothers of such children, or where the child’s mother was, at the time of the application, an undocumented foreign national. The constitutionality of sections 9 and 10 of the Act was only challenged by the Center, and the High Court refused to declare these sections as unconstitutional.
However, the High Court did declare as unconstitutional the regulations requiring a certified copy of a valid visa or permit to accompany the notice of birth application. The High Court declared these regulations as unconstitutional to the extent that they did not allow unmarried fathers to register the births of their children in the absence of the child’s mother, or where the child’s mother was an undocumented foreign national.
Full Bench of the High Court ("Full Bench")
The Centre appealed to the Full Bench on the question of the constitutional validity of section 10 of the Act. The Full Bench found that section 10 presented a bar to unmarried fathers who wanted to apply for a notice of birth of their child in the mother’s absence.
The Full Bench thus declared section 10 of the Act to be inconsistent with the Constitution and invalid to the extent that it did not allow unmarried fathers to give notice of the births of their children under their surname in the absence of the mothers of such children.
For the declaration of invalidity to have an effect, the Constitutional Court had to confirm such declaration by the High Court.
In testing the constitutional validity of section 10, and by extension section 9(2) of the Act, both the majority and minority had to analyse whether these provisions infringed on the rights of (i) the unmarried father, and the child born out of wedlock, to equality, non-discrimination and dignity; and (ii) the rights of child to have the paramountcy of her best interests safeguarded.
The Constitutional Court was divided. The majority found that section 10 of the Act:
- unfairly discriminated against unmarried fathers on the grounds marital status, sex and gender and infringed on the unmarried father’s rights to equality, non-discrimination and dignity;
- unfairly discriminated against children born out of wedlock on the grounds of social origin and birth, and infringed on the child’s right equality, non-discrimination, dignity and to have their best interests safeguarded.
The majority ultimately confirmed the Full Bench’s declaration of invalidity and severance of section 10 of the Act, and severing the words “subject to the provisions of section 10” from section 9(2) of the Act.
On the other hand, the minority found that section 10 of the Act:
- did not unfairly discriminate against the unmarried on the ground of marital status, sex and gender, nor did it infringe on such a father’s constitutional rights to equality, non-discrimination and dignity as put forth by the majority;
- rather than unfairly discriminate against children born out of wedlock, the provision was aimed at safeguarding the best interests of a child.
Ultimately, the minority held that it would not confirm the declaration of invalidity.
In matters involving or affecting children, the importance of the child's best interests cannot be emphasised. The issues in this matter did not only affect the rights of Mr N and Ms N’s child, but also the rights of many other children in South Africa. Despite the differences of opinion between the majority and the minority, the Constitutional Court did not lose sight of the significance of safeguarding the child's best interests.
Both the majority and minority accepted that section 10, and by extension section 9(2) of the Act, differentiated between married fathers and unmarried fathers. The differentiation was on the ground of marital status, which is a listed ground in section 9(3) of the Constitution. Since the discrimination in this case was based on a listed ground, unfair discrimination was presumed unless otherwise established.
The point of divergence between the majority and minority arose in relation to whether there was a reasonable justification for such discrimination. The majority held that there was no reasonable justification, the minority held that safeguarding the child's best interests was a reasonable justification which rendered the differentiation fair.
To determine whether the discriminatory provision is unfair, the court had to assess the nature of the provision or power, and the purpose sought to be achieved by such power. The previous wording of section 10, prior to its amendment in 1996, referred to an “illegitimate child”, which was a concept that was based on the outdated view of marital supremacy and that children not born of married parents deserved less benefits and protection from the law. The amendment of section 10 from “illegitimate” to “born out of wedlock” did not suddenly change the purpose for which the provision was originally enacted, which was to further the notion of marital supremacy. The impact was still the same in that marriage was still held at a higher pedestal than any other type of relationship, and children born of unmarried parents were still treated differently from children born of married parents.
The minority reasoned that the justification for the discrimination was to safeguard the best interests of a child. In reaching this conclusion, the minority placed much focus on the dangers of allowing any man, who claims to be the father of the child but is unmarried to the mother, to register the birth of a child, without confirmation from the mother or reliable next of kin that that man is indeed the father of that child. In particular, the minority raises concerns about possible human trafficking, the involvement of an unworthy man in the life of the child, and that the removal of section 10 would result in there being no safeguards against dangers to the child.
The concerns raised by the minority are real dangers in the society we live in. However, the regulations in the Act and the practical policies of the Department have placed safeguards to address these concerns, even in the absence of section 10.
It is clear is that there are sufficient safeguards in place to promote the best interests of the child. These safeguards do not unfairly discriminate against the unmarried father and do not unduly infringe on the child’s constitutionally entrenched rights to equality, non-discrimination and dignity. In the circumstances, the majority correctly held that there existed no reasonable justification to retain section 10 in the Act, to the detriment of unmarried fathers and children born out of wedlock.
The law, as it stands, is that unmarried fathers are no longer treated differently from married fathers in respect of the registration of a child’s birth. It remains to be seen in subsequent cases, wherein the facts raise similar issues to this case, whether Constitutional Court will confirm the correctness of this judgment, or overturn it.
Lungelo Mkhize, candidate attorney
Sushila Dhever, partner
 Regulations 3(3)(f), 4(3)(f) or 5(3)(f) under the Act.
 Regulations 3(3)(f) and (i), 3(5), 4(3)(f) and (i), 4(5), 5(3)(f) and (i), 5(5) and 12(1).
 Section 167(5) of the Constitutional of the Republic of South Africa, 1996.
 Regulation 12 of the regulations under the Act regulates the notice of birth of a child born out of wedlock. In particular, regulation 12(b)(ii) requires the unmarried father to submit an affidavit in which he acknowledges paternity of the child. Although the regulation does not particularly require paternity test results, in practice, the Department requires the attachment of such results to the notice of birth application for children born out of wedlock. This addresses the concerns around a man falsely claiming to be the father of a child and possible human trafficking.
In the unlikely event of a man’s fraudulent endeavours bypassing the safeguards in place, and registering the child under his surname, the parent or person concerned may rely on section 25(2) of the Act, read with regulation 17, which allows any parent of a minor to apply to the Director-General to amend the surname of a minor for any good and sufficient reason. These provisions serve to reverse the effects of the fraudulent or undesirable registration of a child under the surname of such man.