Source: Lawyers for Human Rights
Lawyers for Human Rights (“LHR”) welcomes the judgment handed on 19 May 2020 by Rugunanan J of the Makhanda High Court where it confirmed the right of unmarried fathers to register the births of their children.
This appeal follows the case concerning the journey of South African Citizen and a citizen of the Democratic Republic of Congo (DRC), who met whilst the former was posted in the DRC as a peacekeeper. The couple had two children. In 2016, when the couple approached the Department of Home Affairs to register the birth of their second child, who was born in South Africa, their application was denied. The couple were told that section 10 of the Births and Deaths Registration Act (BDRA) prevents Home Affairs from registering the birth of the child.
Section 10 of the BDRA regulates the provision of a surname to a child born of unmarried parents:
(a) under the surname of the mother; or (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father..c) the notice of birth may be given under the surname of the mother if the person mentioned in subsection (1)(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.
Section is linked to regulation 12 which states that an application for the registration of the birth of a child may only be submitted by the mother of the child.
LHR, representing Centre for Child Law (CCL) first approached the court in 2018 for a declaration invalidating section 10 of the BDRA unconstitutional to the extent that it discriminates against children born of unmarried parents. Another concern was for children who were abandoned, children whose mothers are deceased among other excluded categories. The court dismissed the application. LHR on behalf of CCL appealed to a full bench and the matter was heard on 2 March 2020.
The judgement made mention of the fact that denying a child access to documentation renders the child invisible. Invisibility means exclusion from health care and complicates access to other social services such as education. Undocumented children face increased vulnerability and exclusion under the state of emergency lockdown where access to social services has direct ramifications for their rights to dignity and life.