Home Affairs: It’s unfair to bar unmarried men from registering child's birth

Section 10 of the Births and Deaths Registration Act stops fathers from registering their child at birth with their surname irrespective of whether the mother is deceased, absent, undocumented or cannot be located.

SA birth certificate. Picture: EWN.

JOHANNESBURG - The Home Affairs Department has conceded that it is unfair and unconstitutional to bar unmarried men from registering the birth of their children without the consent of the mother.

Section 10 of the Births and Deaths Registration Act stops fathers from registering their child at birth with their surname irrespective of whether the mother is deceased, absent, undocumented or cannot be located.

The Centre for Child Law has brought the case to the Constitutional Court to confirm a previous High Court ruling, which declared this part of the law invalid.

The Home Affairs Department said it was not opposing the Centre of Child Law's argument that Section 10 of the Births and Deaths Registration Act infringes on the rights of parents based on their marital status and gender.

If the Constitutional Court confirms this part of the act invalid, the Home Affairs Department suggests that Parliament must then deliberate on what would be the best solution to correct the defects in the act.

The department's lawyer Ismail Jamie said: “The alternative is to simply delete Section 10 in its entirety, it serves no proper constitutional or legislative purpose and it also discriminates between married and unmarried parents. It shouldn’t be allowed in this day and age.”

However, there are some concerns that if this section of the act is scrapped, it could widen the net for abuse by criminals.

But Lawyers for Human Rights' Jatheen Bhima said this was not a good enough reason to leave the act as it is.

“I think globally, human trafficking and smuggling is a concern in the present case.”

Judgment has been reserved in the matter.

The Constitutional Court has heard that it would be unconstitutional and discriminatory against any child not to be allowed to be registered with their father's surname simply because they were born out of wedlock.

Chief Justice Mogoeng Mogoeng has raised some concerns that if Section 10 of the Births and Deaths Registration Act is scrapped, strict measures need to be in place to prevent it from being abused for child trafficking.
"Fraud and corruption are a serious problem and the likelihood is it may be prevalent in the child registration situation. Therefore we need to be vigilant as we make orders and not make orders that can play right into the hands of corrupt characters out there, human traffickers out there.

Bhima has acknowledged that was a delicate balance.

The Home Affairs Department is not opposing the centre for child law's argument that this law is unconstitutional and disrespectful to unmarried parents.

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