South Africa: Registration of a child’s birth: Unmarried fathers no longer treated differently from married fathers
By Lungelo Mkhize, candidate attorney, Sushila Dhever, partner ; Fasken Law
On 22 September 2021, the Constitutional Court handed down a judgment in the case of Centre for Child Law v Director General: Department of Home Affairs and Others  ZACC 31; the judgment found section 10 of the Births and Deaths Registration Act 51 of 1992 (the “Act”), to be invalid in its entirety, and consequently severed it from the Act, along with the wording in section 9(2) which subjected that provision to section 10.
Section 10 of the Act provided for the notice of birth of a child born out of wedlock to be given under the surname of either the mother or the person acknowledging himself as the father. The following scenarios emanated from section 10:
- As a default position, the birth was registered under the mother’s surname;
- Where a joint request with the mother was made, and fatherhood had been accordingly acknowledged, the birth could be registered under the father’s surname; and
- Where the mother’s consent was obtained, and fatherhood had been accordingly acknowledged, the child could adopt the mother’s surname and the father’s particulars would appear in the birth register.
Additionally, section 9(2) of the Act provided for the notice of birth to be given under the surname of either parent, or a double-barreled surname of both parents.
The consequences of section 10 and section 9(2) were that unmarried fathers could not register the birth of their children under their surname unless they did so through a joint request with the biological mother or with her consent. Therefore unmarried fathers could never register the births of their children in their surname without the biological mother’s involvement. This was not the position for married father’s who could independently register their children’s birth under their surname. However, the effect of this judgment is that unmarried fathers are no longer treated differently from married fathers when registering the births of their children.