Source: High Court of South Africa, Eastern Cape Division (Grahamstown)
(CA 319/2018) ;  ZAECGHC 43 (19 May 2020)
[Extract from Centre for Child Law pre-hearing summary: The Legal Resources Centre (LRC) brought the case of Naki and Others v Director General: Department of Home Affairs and Another (Case No 4996/2016) on behalf of Mr Naki who is unmarried and has a child with an “illegal foreigner” and – despite being a South African citizen himself – was unable to register his child. The LRC challenged the regulations as being overly rigid and therefore constitutionally invalid. The Centre for Child Law (CCL) and Lawyers for Human Rights (LHR) intervened and joined the case representing about 40 instances where fathers had been unable to register a child’s birth. They submitted that section 10 of the BDRA read with regulation 12 is unconstitutional. In June 2018, a single judge of the Grahamstown High Court found regulations 3(5), 4(5), 5(5) and 12 unconstitutional and but left section 10 of the Act intact. As a result, CCL and LHR appealed the order to a full bench.]
 Before us is an appeal, with the leave of the Court a quo, in which section 10 of the Births and Death Registration Act  (“the Act”) is laid at the centre of a challenge to its constitutional validity which Bodlani AJ dismissed in a judgment handed down on 9 July 2018. The appellant is a Law Clinic based in the Law Faculty of the University of Pretoria. It is an institutional applicant and its involvement in this matter stems from acting in the public interest in accordance with the Constitution of the Republic of South Africa.
 The appellant’s participation initially derived from an application in the Court a quo where it sought leave to intervene as third applicant in proceedings launched by the third and fourth respondents (as first and second applicants) in which they sought an order reviewing and setting aside the first respondent’s refusal to register the birth of their minor child. Since the judgment a quo renders sufficient factual context it is unnecessary to elucidate the background to the matter as this appeal concerns a legal issue that arises from the interpretation and implementation of section 10 of the Act.
 Referring to the founding papers of the appellant, it is only necessary to state that its involvement in the matter was triggered by the multitude of child cases, all of which are similar to the refusal that confronted the third and fourth respondents. Although the appeal is unopposed it is regrettable that this Court has not had the benefit of submissions from the first and second respondents on an issue affecting vulnerable members of society, more particularly unregistered children born to unmarried fathers.
THE BEST INTERESTS OF THE CHILD
 The registration of the birth of a child commences with the act of giving notice of the child’s birth. The process culminates in the issuing of a birth certificate reflecting the child’s legal name containing a forename and surname, the date of birth and place of birth. Children without birth certificates are “invisible”. Their lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from accessing social assistance and healthcare. They are effectively denied support and assistance considered necessary for their positive growth and development. The numerous child cases, (among them, those labouring under generational statelessness) in the appellant’s papers evokes empathy if one comprehends the extent to which lack of birth registration exacerbates marginalisation and potentially underscores inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives. There is undoubtedly a disproportionate severity of such consequences for children from indigent families.
 The appellant’s case demonstrates that section 10 poses a bar that is discriminatory on the basis of the marital status of the father of a child born out of wedlock. This directly violates the affected father’s right to equality in section 9(3) of the Constitution and is tantamount to unlawfully discriminating against him. By extension, the bar has the effect of denying children, with a legitimate claim to a nationality from birth, a birth certificate; and in this manner it discriminates against children born to unmarried fathers on grounds that are arbitrary. A law that engenders discrimination with the potential for consequences of the enormity shown, cannot be said to be in the best interests of a child. This is the normative standard recognised by the Constitution as paramount in every matter concerning a child notwithstanding, in my view, the marital status of the child’s parents. This expanded connotation of the best interests standard permits the protection of children in matters extending beyond the realm of the rights enumerated in section 28(1) of the Constitution.
 In the circumstances the following order issues:
1. The appeal is upheld.
2. It is further ordered in terms of section 172 of the Constitution of South Africa Act No. 108 of 1996, as amended:
Section 10 Births and Death Registration Act No 51 of 1992, as amended (“the Act”) is, with effect from the date of this order, declared invalid and inconsistent with the Constitution to the extent that it does not allow unmarried fathers to give notice of the births of their children under the father’s surname in the absence of the mothers of such children.
2.2 To remedy this defect section 10 of the Act shall be deemed to read as though it provides as follows:
“(1) Notice of birth of a child born out of wedlock shall be given:
(a) under the surname of the mother; or
(b) under the surname of the father where the father is the person giving notice of the child’s birth and acknowledges his paternity in writing under oath;
(c) 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 of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.
2.3 The declaration in paragraphs (2.1 and 2.2) is suspended for 24 (twenty four) months to enable the Legislature opportunity to amend section 10 of the Act or to devise means for ensuring that it is constitutionally compliant.
Read on SAFLII: http://www.saflii.org/za/cases/ZAECGHC/2020/43.html
Pre-hearing summary from Children’s Institute, UCT: http://www.ci.uct.ac.za/sites/default/files/image_tool/images/367/Pre-hearing%20summary%20updated%20Sept%202019.pdf