ConCourt throws unmarried fathers a lifeline in landmark judgment
The Constitutional Court has declared a section of the Births and Deaths Registration Act unconstitutional.
The apex court found that Section 10 limits the rights of unmarried fathers.
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.
By extension, an unmarried father can’t register his child's birth under his surname, unless the mother is present or gives consent.
The Centre for Child Law argued before the court that the section essentially leaves children 'stateless' – if they cannot be registered by their unmarried father.
The judgment handed down on Wednesday found there was no justification for differentiating between married and unmarried fathers.
This is a landmark judgment for the rights of unmarried fathers across the country.
The legal challenge was sparked by a the 2016 birth of a girl to an unmarried couple, Menzile Naki and Dimitrila Ndovya, a Democratic Republic of Congo national.
The Department of Home Affairs refused to register the birth on the basis that the mother’s visa had already expired when she gave birth in February and could not comply with certain regulations in the Births and Deaths Registration Act.
Naki, the father, was also denied rights to register the birth.
The couple approached the Eastern Cape High Court to challenge the law.
The Centre for Child Law was later admitted as an intervening applicant in the matter.
The apex court ruled that section 10 should be scrapped in its entirety.
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