Last month’s ConCourt judgment declared Section 10 of the Births and Deaths Registration Act invalid.
As the confusion regarding unmarried fathers now being able to register their children under their surname without the mother’s consent continues, experts say unmarried fathers should not rush to do so. According to law experts, this is misleading as the Constitutional Court judgment applied only to maternal orphans, children who had been abandoned by their mothers and, in this case, mothers who are not documented.
The apex court said the section was unconstitutional as it differentiated between children born in and out of wedlock and unfairly limited the right of an unmarried father to register his child’s birth under his surname. She also said the section did not deal with altering the child’s details, which had already been covered by the home affairs regulations, but the struggle of undocumented children who were refused their fundamental rights due to not being registered.
Stanley Malematja of the Centre for Child Law and Lawyers for Human Rights said if understood correctly, the judgment was actually a positive response as many undocumented children often could not have access to public services such as healthcare and education. “Which is why the court has declared Section 10 of the Act unconstitutional, to the extent that it draws an unfair differentiation between unmarried and married fathers,” he said.
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