Over a year ago, we wrote about a case brought by the University of Pretoria, appealing against a decision concerning Section 10 of the Births and Death Registration Act. The appeal found that Section 10, which requires a child born out of wedlock to be given the mother’s surname, is discriminatory. It discriminates against fathers on the basis of marital status. The father’s surname may only be given to the child, at the joint request of the mother and in the mother’s presence, assuming the father acknowledges paternity.
The May 2020 ruling declared Section 10 of the Act invalid and inconsistent with the Constitution. The following words were added to section 10: “under the surname of the father where the father is the person giving notice of the child’s birth and acknowledges his paternity in writing under oath”. The order was referred to the Constitutional Court for confirmation.
Now, we are very pleased to report, the Constitutional Court has provided its confirmation and declared Section 10 unconstitutional. This report from News 24 has the full story.
Section 10 of Births and Deaths Registration Act ‘impairs dignity of unmarried fathers’ – ConCourt
The Constitutional Court has declared section 10 of the Births and Deaths Registration Act – which does not allow an unmarried father to register his child’s birth under his surname, unless the mother is present or gives consent – unconstitutional.
In a judgment by Justice Margaret Victor on Wednesday, which was read out by Justice Steven Majiedt, the court found there was no justification for differentiating between married and unmarried fathers.
“Section 10 of the act impairs the dignity of unmarried fathers, whose bonds with their children are deemed less worthy than the children of married parents,” Majiedt said.
The apex court confirmed a 2020 ruling by the Eastern Cape High Court, which found the act invalid and inconsistent.
Father Menzile Lawrence Naki approached the court after the Department of Home Affairs refused to register his child under his surname because the mother was an undocumented Democratic Republic of Congo national.
Consent
The department would also not allow him to register the birth, without the mother’s consent.
Chief Justice Mogoeng Mogoeng was one of two dissenting justices. He acknowledged that the act discriminated against unmarried fathers, but held the discrimination was reasonable, justifiable and fair.
“The chief justice further reasons that they must be protected and not exposed to the risks of being easily claimed and adopted by people, whose relationship with them or subsequently to be in their lives, has been established,” said Majiedt.
We’ll help you realise your rights
If you are an unmarried parent and want advice on your rights and the law, we can help. We are family lawyers with extensive experience of child care and contact, antenuptial contracts, cohabitation, wills and estate planning and other relationship and family matters. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za today.
Further reading:
- Are you a single parent? Know your rights and obligations
- Travel Consent When Taking a Child Abroad
- Unmarried father – know your rights
Divorce Attorney Cape Town
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