Centre for Child Law v Director-General Department of Home Affairs and Others

Parties (including notable third parties)

Applicant: Centre for Child Law; Respondents: Director General of the Department of Home Affairs, Minister of Home Affairs, Menzile Lawrence Naki, Dimitrila Marie Ndovya

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Summary of Facts

The third respondent, Mr Menzile Lawrence Naki (a South African citizen) and the fourth respondent, Ms Dimitrila Maria Ndovya (a citizen of Democratic Republic of the Congo (‘DRC’)) underwent a customary marriage in the DRC which was not registered. Their daughter, NN, was born in South Africa. While pregnant, Ms Ndovya had travelled to South Africa on a visitor’s visa, which expired shortly before NN’s birth. Ms Ndovya did not renew her visa or return to the DRC. Following the birth, the parents sought to notify (i.e. register) NN’s birth with the Department of Home Affairs in South Africa.

The Department refused to register NN’s birth, citing the Regulations on the Registration of Births and Deaths (‘Regulations’) which require a non-South African parent to present a valid passport, visa or permit. The Department also did not recognise the customary law marriage and NN was treated as a child born out of wedlock, thereby triggering Section 10 of the Births and Deaths Registration Act (‘Act’) which contains more restrictive rules for the nomination of surname and parental consent. While NN was entitled to South African citizenship by birth through her father, the Department refused to register her birth until NN’s mother complied with the Regulations.

The parents applied to the High Court of South Africa to review and set aside the Department’s refusal to register their daughter’s birth and compel their daughter’s registration. They further challenged the Department’s interpretation of and, to the extent necessary, the constitutionality of the Regulations.

The Centre for Child Law was also admitted as an intervening party. The Centre for Child Law challenged sections 9 and 10 of the Act as unconstitutional to the extent that they do not allow unmarried fathers to register the births of their children in the absence of the mothers of such children. They also challenged sub-regulations (3) and (5) of Regulations 3, 4 and 5, and Regulation 12(1) as unconstitutional, to the extent that they do not allow unmarried fathers to register births of their children in the absence of the child’s mother or where the child’s mother is undocumented.

The High Court granted the parent’s relief concerning registration of NN’s birth. However, the High Court declined to declare that Sections 9 and 10 of the Act were unconstitutional, holding that:

• Section 9 of the Act permitted any one of the parents to give notice of their child’s birth regardless of their marital status, interpreting that the Act allows registration of any child born alive by either parent, regardless of their marital status; and
• Section 10 of the Act does not deal with notification of the child’s birth but instead with the assignment of a surname to a child during the process of notification of their birth.

The Court further held that sub-regulations 3(f) and (i) and sub-regulation 5 of Regulations 3, 4, 5 and 12 were constitutionally invalid as they inhibited access to registration of births.

The Centre for Child Law further appealed to the Full Court regarding the constitutionality of Section 10. The Full Court found that Section 10 was unconstitutional as it prevented the father notifying the birth of his child under his surname in the mother’s absence.

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Legal Arguments

Legal Arguments by the Applicant

The Applicant contended that Section 10 of the Act was unconstitutional as it prohibited unmarried fathers from giving notice of birth under their surname in the mother’s absence, which unfairly discriminated against children and resulted in children not being able to fully realise their constitutionally guaranteed rights.  In particular, the Applicant argued that the starting point in any matter concerning the rights of children is always the best interests of the child principle.  A child without a valid certificate is at risk of exclusion of healthcare and access to social assistance.  Children have a fundamental right to be registered after birth to acquire nationality, and it is not in the best interests of a child to be rendered stateless.

Legal Arguments by the Respondents

The Department and Director-General conceded that Section 10 was unconstitutional, but on the basis that an unmarried father would be unable to register his child under his surname (rather than that the father would be unable to register the child’s birth without the mother’s consent). The Respondents also submitted that Section 9 does allow either parent to register the child’s birth irrespective of marital status. The respondents contended that Sections 9 and 10 conflict with each other as Section 9 allows either parent to register their child’s birth and assign their surname, while Section 10 only enables the mother’s surname to be used.

Outcome

The majority of the Constitutional Court of South Africa held that Section 10 of the Act is unconstitutional as it is discriminatory against unmarried fathers on the basis of sex, gender and marital status, and is inconsistent with the best interests of children and their rights to dignity, equality, a name and nationality.

The Court found that Section 10 of the Act resulted in a prejudicial distinction between married and unmarried fathers and undermined the role of unmarried fathers by making their rights to register children in their own right conditional and dependent on their relationship with the mother. The majority found that Section 10 of the Act prevented unmarried fathers from registering their children in their surnames by requiring the mother’s consent or presence. Section 10 also infringed upon unmarried fathers’ right to dignity, detracting from a father’s primordial and biological connection to his child.

The Court also held that the impugned section discriminated against children born out of wedlock, noting that the differentiation and supremacy of a married couple in comparison to unmarried couples continues to be problematic and that differential treatment of children born out of wedlock is invidious, unconstitutional and unjustifiable.  The Constitutional Court highlighted that when children are born, the rights of the mother and father are vested in terms of the Children’s Act. Theerfore, children should not be subjected to differential treatment in relation to the registration of their birth or in their father’s surname.

Dissent

Mogoeng CJ (with Mathopo AJ concurring) dissented from the majority, opining that an unmarried father is not precluded from registering his child under the Act even though the impugned provisions prescribe conditions to be met. His Honour was of the view that the impugned provisions did not impact the interests of a child or statelessness as raised by the applicant as, in the case of NN, it was a regulatory issue that prevented the registration of her birth due to the mother not having a valid visa. Mogoeng CJ also noted that the differentiation between birth registration requirements on the basis of marital status was justified by evidentiary and relational differences between marriages and non-marital relationships, and that the requirement to obtain the mother’s consent constitutes recognition within legislation to protect the interests of the child such that a father cannot register the child regardless of the mother’s views, who would be best placed to attest as to the identity of the father.

The dissent was also of the view that the differential treatment as a result of Section 10 of the Act, though it may impinge upon the right to dignity of an unmarried person, is justified, as the best interests of the child could be safeguarded by the mother of the child by requiring her consent.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of South Africa	Sections 3, 10, 19, 20, 27, 28, 29
Domestic	Births and Deaths Registration Act 51 of 1992	Sections 9, 10
Domestic	Children’s Act 38 of 2005	Section 21

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Kris Franklin and Sarah E Chinn, 'Attentive Reading: A South African Example of Law in Context' (2024) 21(2) Rutgers Journal of Law and Public Policy 211, 237

• The authors, in summarising the case, highlight that the judgment authored by Judge Victor focuses on the central injustices of the case – the invidious distinction South African law makes between married and unmarried couples.
• The authors also observe that the judgment’s analysis of underlying social structures extends beyond the fact that discrimination is based on marital status and gender.
• It is acknowledged that the analysis of the discrimination exposes the vulnerability of children whose parent is an undocumented migrant.
• It is also observed that under Section 9 of the Act, no person’s birth shall be registered unless a surname has been assigned, resulting in unregistered children existing in administrative limbo and stateless.