ZACC 31
Hearing Date: 01 September 2020
Judgement Date: 22 September 2021
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 22 September 2021 at 14h00, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown, sitting on appeal (Full Court). The Full Court declared section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) invalid and inconsistent with the Constitution to the extent that it prohibits an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent.
In 2016, Menzile Lawrence Naki, a South African man, and Dimitrila Marie Ndovya (Ms Ndovya), a woman who is a citizen of the Democratic Republic of Congo (DRC), sought to register the birth of their daughter, born in Grahamstown on 1 February 2016, with the Department of Home Affairs (Department) in Grahamstown. Before their daughter’s birth, Ms Ndovya travelled to and from South Africa to the DRC on a visitor’s visa. Shortly before their daughter was born, Ms Ndovya’s visa expired. Due to her pregnancy, she could not renew the visa or travel back to the DRC.
The Department refused to register the child’s birth on the basis that the mother (Ms Ndovya) lacked a valid visa or permit and could not comply with certain Regulations on the Registration of Births and Deaths, 2014 (Regulations). The couple subsequently brought an application to the High Court to review and set aside the decision refusing to register their daughter’s birth, and challenged the constitutionality of the relevant Regulations. The Centre for Child Law was admitted in the High Court as an intervening applicant. It sought orders declaring sections 9 and 10 of the Act and sub-regulations (3) and (5) of Regulations 3, 4 and 5 and Regulation 12(1) of the Regulations unconstitutional.
The High Court held that, on a proper construction, the first reference to “mother” in section 10(2) was intended to be “father”, and on their current formulation, sections 9 and 10 of the Act do not prohibit unmarried fathers from, registering the births of their children in the absence of the mother who gave birth to such children. It held that the requirement is that such children must be born alive, in which case any one of the parents, regardless of their marital status, would be able to give notice of the birth. The sections could thus be interpreted to be constitutionally compliant. The relief relating to the registration of the child’s birth was granted. With leave, the Centre for Child Law appealed to the Full Court on the question of the constitutional validity of section 10.
The Full Court disagreed with the approach taken by the High Court. It found that the High Court’s interpretation of section 9 failed to consider that the notification of any child born alive is subject to the provisions of section 10. Section 10 is thus the mechanism through which the content of the notice in section 9 is fulfilled. The Full Court found that, even though section 9 empowers an unmarried father to give notice of his child’s birth, the exercise by an unmarried father of his right under section 9(1) is contingent on either the mother’s presence or her consent, in terms of section 10. In effect, section 10 presents a bar to a father giving notice of the birth of his child under his surname in the mother’s absence. The Full Court thus declared section 10 invalid and inconsistent with the Constitution. This declaration was suspended for 24 months to allow Parliament to cure the defects. As an interim remedy, the Full Court read words into the section to apply during the period of suspension.
Before the Constitutional Court, the applicant sought confirmation of the order of the Full Court in terms of section 172(2)(a) of the Constitution. It submitted that the declaration of constitutional invalidity be suspended for a period of 18 months. The applicant contended that section 10 of the Act is unconstitutional because it prevents unmarried fathers from registering their child’s birth under their surname in the absence of the mother or without her consent. The Centre for Child Law submitted that the differentiation between standards applicable to children born within or outside of wedlock is arbitrary, and section 10 thus unlawfully discriminates against both unmarried fathers and children born out of wedlock on various grounds, with the result that children born out of wedlock are not able to fully realise certain constitutionally guaranteed rights.
The Director-General of the Department of Home Affairs and the Minister of Home Affairs (Respondents) did not oppose the confirmation of the constitutional invalidity of section 10. They submitted that section 10 is unconstitutional for reasons in addition to those relied upon by the Centre for Child Law. They submitted that section 10 places restrictions on parents who are not married to each other, with the result that section 10 unfairly discriminates against and impermissibly infringes the rights of both unmarried parents and the rights of children born to parents out of wedlock. They submitted that the order of constitutional invalidity should be suspended for a period of 24 months. The Respondents proposed that during the period of suspension, an interim remedy, consisting of severance and reading-in, different from that ordered by the Full Court, should apply.
The main judgment, penned by Victor AJ (Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring), confirmed the order of constitutional invalidity made by the Full Court. It found that section 10 does limit the ability of an unmarried father to confer his surname on his child. Applying the test laid out in Harksen v Lane N.O. it found that there is no justification for differentiating between married and unmarried fathers in relation to conferring a surname on a child and accordingly, section 10 is unconstitutional, invalid and amounts to unfair discrimination on the listed grounds of marital status, sex and gender, which is prohibited by section 9(3) of the Constitution. It also held that section 10 of the Act impairs the dignity of both unmarried fathers, whose bonds with their children are deemed less worthy, and the children of unmarried parents.
In relation to the child, the main judgment found that the concept of “illegitimacy” and differential rights for children born in and out of wedlock is inconsistent with the principle in section 28(2) of the Constitution that the rights of the child are paramount. It held that section 10 also constitutes an infringement on a child’s right not to be discriminated against on the grounds of social origin or birth. For all of these reasons, the main judgment concluded that section 10 of the Act is manifestly inconsistent with the rights to equality, dignity and the best interests of the child and invalid to the extent that it limits the rights of unmarried fathers to give notice of the birth of their child in their surname. It ordered that section 10 of the Act be severed in its entirety and that the proviso in section 9(2), stating that section 9(2) is “subject to the provisions of section 10” is similarly severed by reason of the declaration of constitutional invalidity of section 10. It ordered that the declaration of invalidity take effect from the date of the order.
In a dissenting judgment, Mogoeng CJ, with Mathopo AJ concurring, acknowledged that section 10 of the Act does discriminate against unmarried fathers on the basis of marital status. However, he held that the discrimination is reasonable, justifiable and fair.
He held that children are vulnerable and their best interests are of paramount importance when issues that concern them have to be addressed. The CJ further reasoned that they must be protected and not be exposed to the risk of being easily claimed and “adopted” by people whose relationship with them or suitability to be in their lives, has not been established. He also held that the declaration of section 10 as constitutionally invalid, and the deletion of “subject to the provisions of section 10” in section 9(2) of the Act and the order, by the majority judgment, constitute serious risks to the best interests of a child.
In conclusion, he held that sections 9 and 10 of the Act are capable of being read in a manner that is constitutionally compliant. He therefore refused to confirm the declaration of unconstitutionality and set aside the orders made by the courts below with no order as to costs..
The Full judgment here