Hundreds of children in South Africa are not having their births registered, simply because their parents are unmarried and the department of home affairs does not recognise the complexities surrounding these cases.
This perpetuates the notion that this group of children do not have the same inherent worth as others born within wedlock, says the Centre for Child Law at the University of Pretoria.
This is because the 1992 Births and Deaths Registration Act does not make provision for unmarried fathers to register the births of their children, without the child’s mother.
These children are stateless, which means that they are not recognised as citizens of any country in the world and they can’t access basic things such as their constitutional rights, social services, healthcare or education.
In 2018, the centre obtained an order in the Grahamstown High Court which declared that regulation 12, promulgated under the act, was unconstitutional.
This regulation determines that, in cases where the parents are unmarried, only the mother may apply for a birth certificate for the child. The regulation provides that the notice of the birth of a child, “born out of wedlock”, must be done by the child’s mother.
However, the court did not declare section 10 of the act unconstitutional, which the centre had also sought. Section 10 states that the child of unmarried parents will have the surname of the mother. It makes no provision for the child to have their father’s surname or for him to be recorded as the father on the birth certificate without the mother’s involvement.
The centre last week appealed the ruling before a full bench of judges.
Judgment was reserved.
Anjuli Maistry, the centre’s attorney, said that if the court does not declare section 10 unconstitutional, unmarried fathers would still not be able to register the birth of their children – without the mother’s involvement.
The centre as well as Lawyers for Human Rights said they have hundreds of fathers as clients, who were unable to register the births of their children.
The fact that these children were stateless also created the issue that their own children would, therefore, be born stateless.
In 2017, the centre knew of 33 children who could not be issued with birth certificates.
Their mothers were foreign nationals, but their fathers were South African.
The centre said in court papers that the department of home affairs had refused to allow the mothers to register the births, because the women’s details are not recorded anywhere, or because there was an investigation under way into their ID numbers.
Some mothers had also been unwilling, or unable, to attend to the registration process at the department.
The children therefore remained unregistered, as their unmarried fathers were also unable to register their births.
The 1992 Births and Deaths Registration Act does not make provision for unmarried fathers to register the births of their children, without the child’s mother.
According to the court papers, statelessness means you are excluded from the right to a name or nationality. You do not have the right to vote, the right to freedom and security of the person or the right to have your human dignity respected and protected.
Without birth certificates, it is also impossible to register these children in the countries their mothers come from, because all countries require proof of the place of birth of a child.