Apex court hears its unconstitutional to bar unmarried father from securing birth certificate

Currently, Section 10 of the Births and Deaths Registration Act states that a child born to an unmarried couple automatically receives the mother's surname. 

The centre believes the section essentially leaves children 'stateless' – if they cannot be registered by their unmarried father. 

“The difficulty is the only means of proving paternity is through a DNA test and to make that a requirement in the notification of birth makes the process of notification unnecessarily burdened,” the centre’s counsel, Jatheen Bhima told the court on Tuesday. 

The centre says there are several reasons why a mother may not be involved in the birth registration process, which could include her being deceased, absconded, undocumented or unlocated. 

Bhima argued that the provision has proven to be a fundamental hurdle to children being able to access their right to birth registration and ultimately their right to nationality. 

Chief Justice Mogoeng Mogoeng raised his concerns about the risk of false claims of fatherhood and possible human trafficking. 

“It can’t be denied that corruption is rampant in South Africa, whether it relates to tenders, whether it relates to child registration, it respects no territory and that’s where I’m coming from.  

“Fraud  and corruption is a serious problem and the likelihood is it may permeate even the child registration process therefore we need to be vigilant so not to make orders that can play right into the hands of corrupt characters out there, human traffickers out there,” Mogoeng said. 

Mogoeng added that proper checks and balances would need to be in place to mitigate against such risks. 

The apex court reserved judgment.

Listen to CJ Mogoeng and Adv Bhima below: