Source: Daily Maverick (South Africa)
By Nicole Breen
Under current South African law – now being challenged in the Constitutional Court – a child’s birth cannot be registered if the person registering the birth is an unmarried father and is doing so without consent of the mother. This renders the newborn child stateless.
The right to a name and nationality from birth is enshrined in Section 28(1) of the Constitution. Enabling legislation, specifically the Births and Deaths Registration Act, is meant to facilitate realisation of this right.
The stark reality, however, is that the births of many children in South Africa are not registered. This leaves them open to risks and deprives them of rudimentary entitlements, such as basic education and access to social security and healthcare. It can also diminish eligibility for employment later on in life, and lead to arbitrary arrest and detention.
One instance where a child’s birth cannot currently be registered is if the person doing the registering is an unmarried father doing so without the consent of the mother of the child.
There are a number of reasons a mother may not consent to the unmarried father registering the birth of a child. She may, for instance, be deceased or have absconded.
It is Section 10 of the Births and Deaths Registration Act that contains this exclusion. It provides that the mother’s presence or giving of consent is necessary in all scenarios in which a child’s birth can be registered, implicitly barring an unmarried father from registering a birth in the absence of the mother.
This is tantamount to unfair discrimination against the father and the child – in respect of the first, because the law does not recognise them as a parent, and in respect of the second, in that it denies the child of a right that the Constitution guarantees to everyone.
Section 9 of the Constitution protects against unfair discrimination.
The discrimination against the child, owing to the consequences it heralds, is also contrary to Section 28(2) of the Constitution, which states that “the best interests of the child are of paramount importance in every matter concerning the child”.
In the event that a child’s birth cannot be registered, that child is essentially rendered stateless. Under the Convention Relating to the Status of Stateless Persons, “the term ‘stateless person’ means a person who is not considered as a national by any state under the operation of its law”.
Unfortunately, South Africa has not ratified this convention, which diminishes the specificity with which we are obliged to protect stateless persons.
South African case law is clear on this matter in S v M (Centre for Child Law as Amicus Curiae), explaining that a child “cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them”.
On 1 September 2020, arguments were heard in the Constitutional Court in this regard, with the Centre for Child Law as an institutional applicant in this matter.