1 October 2021 by and Pro Bono & Human Rights Alert

A victory for unmarried fathers

Previously, when a child was born in South Africa to unmarried parents that child was automatically assigned their mother’s surname. Such child could only take their father’s surname where their mother and father jointly requested – in the presence of a designated Department of Home Affairs (DHA) official – for the child to bear their father’s surname. This prohibited unmarried fathers (even though they may well have been the primary caregivers) from passing their surname to their children if the mother refused her consent or was unable to provide consent where she was absent. Recently the Constitutional Court declared this antiquated approach to the ability of unmarried fathers to pass along their family names as unconstitutional and consequently struck section 10, and the related part of section 9(2), from the Births and Registrations Act 51 of 1992 (Act).

This was brought about by an application to the Eastern Cape High Court by a South African father, and a mother who is a citizen of the Democratic Republic of Congo (DRC) - who was legally absent from South Africa at the time of her daughter’s birth - because the father was unable to give notice of and register his daughter’s birth under his own surname. The parents’ customary law marriage was not registered in the DRC which in turn means their marriage is not recognised in South Africa. Therefore, their daughter was treated as being “born out of wedlock” and since the mother’s visitor’s visa had expired, she was considered legally absent from South Africa and unable to provide her consent to her daughter bearing the surname of her father (as was required by section 10 of the Act). The DHA refused to register their daughter’s birth until the mother produced a valid passport and visa or permit, as per the Regulations of the Act.

In the High Court the parents, assisted by the Centre for Child Law, sought to have the DHA’s refusal to register their daughter’s birth reviewed and set aside, to compel the DHA to register their daughter’s birth, and challenged the constitutionality of sections 9(2) and 10 of the Act and the DHA’s interpretation of the accompanying Regulations. The High Court granted the parents relief regarding the registration of their daughter’s birth. It also found that those sections in the Act could be read to be constitutionally compliant, however the relevant Regulations were declared constitutionally invalid and, in an attempt to maintain the integrity of the Act, proposed to read-in words to cure the defects in those Regulations. An appeal was made to the full bench of the same court on the basis that the reading-in proposed by the lower court did not cure the inability of an unmarried father to register his child’s birth under his surname in the absence of the child’s mother. The full court then declared section 10 of the Act constitutionally invalid and as an interim remedy proposed additions to the offending section.

Constitutional Court confirmation

The Constitutional Court was requested by the Centre for Child Law to confirm the order of constitutional invalidity of section 10 on the basis that it prohibits an unmarried father from giving notice of the birth of his child under his surname in the absence of the child’s mother. The Centre argued that this prohibition discriminated against children who are then unable to fully realise their constitutional rights as documented citizens of South Africa. The respondents were in agreement with the applicant that section 10 of the Act was unconstitutional but argued that this unconstitutionally was due to the fact that it was under-inclusive insofar as it allowed for either parent to register the birth of the child, but the surname was restricted to that of the mother. This in turn infringed on the father’s right to equality and the child’s right to their father’s surname from birth. The respondents submitted that by removing section 10 in its entirety as well as the words “subject to the provisions of section 10” from section 9(2) it would enable any father, irrespective of their marital status, to give notice and register the birth of their child.

The majority judgment adopted a gender-neutral and marital-neutral approach by confirming the order of constitutional invalidity of the full bench on the basis that section 10 of the Act unfairly limited the ability of an unmarried father to pass his surname on to his child in terms of the Harksen test. The Harksen test was formulated in a previous judgment of the Constitutional Court to determine whether a piece of legislation propagates unfair discrimination. In this matter the court found that section 10 of the Act irrationally discriminated between categories of people, and in the absence of a legitimate government purpose put forward by the DHA, it was also found to amount to unfair discrimination because it differentiated between people in terms of categories prohibited in the Constitution, known as the “listed grounds” of marital status, sex and gender. Additionally, section 10 was found to perpetuate stereotypical gender roles and the assumption that childcare is inherently a mother’s duty. The court noted that it is both parents who bear the primary responsibility to care for their child, as is provided for in the Children’s Act 38 of 2005.

The majority also found that section 10 perpetuates the notion of “illegitimacy” by differentiating between children born in and out of wedlock. The Constitutional Court has previously emphasised that children must be regarded as autonomous, albeit vulnerable, rights-bearers who are not mere extensions of their parents. Therefore, the unfair discrimination of children based on parental marital status, social origin and birth is in conflict with the principle that the best interests of the child are of paramount importance.

The majority accordingly found section 10 of the Act to be manifestly inconsistent with the rights to equality, human dignity and the best interests of the child and should summarily be severed from the Act with immediate effect. The majority recognised that “South African society is not homogenous, and it must be accepted that the concept of ‘marriage’ no longer retains its stereotypical meanings.”

Minority judgment

The minority judgment however, penned by our Chief Justice, took a strong opposition to this progressive stance. It held that the discrimination against unmarried fathers based on marital status was reasonable, justifiable, and fair. The minority found that the choice of parents to remain unmarried necessarily extended to a father’s choice not to commit to parenting his child. In this way we must “entrust the welfare or protection of the child to the mother as opposed to an unmarried father whose status as such and commitment to the child’s wellbeing is unrecorded and cannot therefore be presumed.” The minority would not presume to hold an unmarried father as responsible for his child born out of wedlock as it would an unmarried mother, who is seemingly more accountable by virtue of being a woman.

Our Pro Bono and Human Rights Practice has been approached on several occasions by unmarried fathers wanting to register their child under their surname, however the offending provisions of sections 9(2) and 10 of the Act rendered this practically impossible. This majority judgment goes a long way in enabling fathers to take responsibility for their children, and in so doing moves away from the notion that women and mothers should bear the sole responsibility for childcare.

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