CENTRE FOR CHILD LAW v DIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS AND OTHERS 2022 (2) SA 131 (CC).

Citation: 2022 (2) SA 131 (CC). 

Court: Constitutional Court of South Africa, 22 September 2021.  

Judgements: Victor AJ (majority) & Mogoeng CJ (dissenting). 

1. INTRODUCTION 

This case is a landmark decision in South Africa’s constitutional jurisprudence regarding  children’s rights, gender equality, and, in particular, the rights of unmarried fathers. At the  heart of the dispute was whether an unmarried biological father could register his newborn  child’s birth under his surname without the mother’s consent, as section 10 of the BDRA had  previously required. The Constitutional Court held that the requirement discriminated unfairly  against unmarried fathers and their children born out of wedlock, violating the constitutional  rights to equality, dignity, and the best interests of the child. The court accordingly struck down  the relevant portion of section 10. This judgment is significant because it affirms that parental  rights and responsibilities are not determined by marital status, and that the law must respect  the evolving involvement of fathers in modern family life. It also aligns statutory interpretation with the Children’s Act 38 of 2005 (“Children’s Act”), which already recognised parental  responsibilities of unmarried fathers under section 21. 

2. FACTUAL BACKGROUND 

The case arose from difficulties experienced by unmarried fathers attempting to register the  births of their children. Under section 10 of the BDRA, if the parents were not married, the law  required: (a) the mother’s consent for the child to be registered under the father’s surname; and (b) the mother’s presence or signature to complete the registration. This statutory regime  assumed that unmarried mothers were the default or primary parent and required their  involvement even in circumstances where: (a) the father was the primary caregiver; (b) the  mother was deceased; (c) the mother had abandoned the child; or (d) the father and mother  were estranged and communication was impossible. This created severe administrative and  emotional difficulties for unmarried fathers, especially those who were responsible and actively involved in parenting. Several fathers were turned away from Department of Home Affairs  (“DHA”) offices simply because they could not produce the mother’s written consent. In some  cases, these children remained without official identification, exposing them to the risk of being  classified as undocumented. The Centre for Child Law (“CCL”), concerned about both the  rights of fathers and the consequences for children, launched an application in the High Court  to challenge the constitutionality of the provision. The High Court declared the provision  unconstitutional and invalid. The matter then came before the Constitutional Court for  confirmation. 

3. THE LEGAL QUESTIONS BEFORE THE COURT 

The Issue:  

Whether section 10 of the Births and Deaths Registration Act 51 of 1992 (“BDRA”)  unfairly discriminated against unmarried fathers by requiring the mother’s consent to  register a child under the father’s surname. 

The Constitutional Court had to determine: 

1. Whether section 10 of the BDRA unjustly discriminates against unmarried fathers,  contravening section 9 of the Constitution of the Republic of South Africa, 1996. 2. Whether it violated children’s constitutional rights, particularly the right to a name,  nationality, and having their best interests considered paramount. 
2. Whether the statutory requirement aligns with the Children’s Act, which recognises  parental responsibilities for unmarried fathers under section 21. 
3. What is the appropriate remedy if the provision is found unconstitutional? 
4. ARGUMENTS OF THE PARTIES 

4.1 Centre for Child Law (Applicant) 

The CCL argued that the law was first grounded in outdated patriarchal assumptions that only  married fathers were legitimate or trustworthy parents. Second, this violated the father’s right  to equality because married fathers could register their children alone, but unmarried fathers  could not. Thirdly, it violated the right to dignity of fathers by suggesting that their parental  role was inferior. Fourthly, it infringed the rights of children who might be left unregistered  simply because their parents were not married. Finally, it was inconsistent with the Children’s  Act, which grants unmarried fathers automatic parental responsibilities when they meet the  criteria outlined in Section 21.

4.2 Department of Home Affairs (Respondent) 

DHA argued that the provision promoted certainty, preventing fraudulent birth registrations by  people falsely claiming paternity. Second, that mothers were typically the primary caregivers,  especially in cases involving unmarried parents and requiring the mother’s consent, helped  protect children from abduction or wrongful surname registration. However, DHA provided no  empirical evidence that unmarried fathers were more likely to commit fraud than other  categories of parents. The Constitutional Court later noted this gap. 

5. LEGAL REASONING / RATIO DICIDENDI 

The majority judgment was written by Victor AJ, with the full court concurring. A  constitutional analysis emphasising equality, dignity, the Children’s Act, and the best interest of the child standard was used. 

The Court found that the provision differentiated between married fathers, who could  register their child alone, and unmarried fathers, who needed the mother’s consent. This  amounted to discrimination on the basis of marital status, a prohibited ground under section  9(3) of the Constitution. The Court held that the differentiation had the effect of stigmatising  unmarried fathers; reinforcing stereotypes about caregiving roles; and undermining their ability  to fulfil parental responsibilities. Because the discrimination was based on marital status, a  corresponding ground affecting dignity, it was presumed unfair, and the DHA failed to rebut  this presumption. The Court stated that requiring the mother’s consent implied that the father  was not a legitimate parent unless the mother permitted him to act as such. This undermined  the father’s sense of worth and role in the child’s life. It also infringed on the dignity of children  by suggesting that their identity and legal recognition depended on the marital status of their  parents. The best interests of the child, placed at the centre of all decisions, were central to the  Court’s reasoning. The Court stressed that many children could not be registered for months or  years because their fathers, even those living with and caring for them, were prevented from  doing so. The Court noted that birth registration is not a privilege, but a constitutional right tied  to identity, access to services, education, healthcare, and social protection. The statutory  provision placed children at risk of administrative exclusion, compromising their ability to  access essential rights. Under section 21 of the Children’s Act, unmarried fathers acquire  parental responsibilities and rights where they: are identified as the father; have contributed to  the child’s upbringing; and have contributed to maintenance. The Court observed that section 10 of the BDRA contradicted this framework by refusing recognition to fathers who already  met these criteria. Thus, the BDRA was inconsistent with the fundamental principle of the  Children’s Act; that parental rights are grounded in involvement, not marital status. 

6. THE JUDGEMENT AND ORDER 

The Court confirmed the High Court’s declaration of invalidity. 

The key findings were that: 

1. Section 10 of the BDRA was found to be unconstitutional and invalid to the extent that  it required the mother’s consent for an unmarried father to register his child under his  surname.  
2. The unconstitutional part was severed from the statute.  
3. The Children’s Act continued to govern parental responsibilities and rights, ensuring  that fathers who meet its criteria are recognised as full parents for birth registration  purposes.  
4. The judgment was applied retrospectively but included safeguards to maintain  administrative clarity. 

         7. SIGNIFICANCE OF THE JUDGMENT 

This case has broad social and legal implications: The Court recognised that traditional  stereotypes about mothers as default caregivers are inappropriate and discriminatory and that  fathers’ identities and rights must be protected, particularly as family structures evolve. The  decision affirmed the constitutional principle that one’s marital status cannot be used as a proxy  for parental fitness or involvement in the care of one’s children. The judgment also reinforced  that a child’s best interests include respecting both parents’ roles and ensuring children have  access to legal identity documents without unnecessary administrative barriers. The law must  support children’s relationships with both parents whenever possible. The ruling required DHA  to adjust its procedures, allowing unmarried fathers to register children on their own. The  surname of the child can be registered under the father’s surname, provided the father complies  with the Children’s Act, and administrative discrimination based on marital status must be  eliminated. Furthermore, this case ensures consistency between the Births and Deaths  Registration Act and the Children’s Act, which recognises unmarried fathers’ rights based on  caring relationships rather than marital status. This strengthens South Africa’s child-law  framework and protects modern family structures.

8. CRITICAL ANALYSIS 

The Court’s reasoning demonstrates a strong commitment to substantive equality, particularly  by recognising how formal legal rules can entrench harmful stereotypes. The decision is  grounded in a realistic understanding of family life, the significance of fathers in children’s  development, and the need to remove barriers to legal identity. A critical aspect of the judgment  is its consideration of the intersection between children’s rights and administrative law.  Administrative rules that delay or obstruct birth registration have both immediate and long term effects on access to education, healthcare, social grants, and citizenship. The Court’s  analysis elevates the practical implications of birth registration and treats it not as an  administrative step, but as a gateway right. Furthermore, the case emphasises that the child’s  best interests must be interpreted generously. Instead of allowing rigid legal rules to dictate a  child’s identity, the Court demands that the law reflect the lived realities of families and  promote access to rights. The remedy, which involves severing the unconstitutional portion,  strikes an appropriate balance between constitutional principles and legislative restraint. It  ensures that the Children’s Act governs parental responsibilities and that the BDRA does not  contradict or weaken these protections. 

9. CONCLUSION 

Centre for Child Law v Director-General of Home Affairs is a groundbreaking decision  affirming that unmarried fathers are entitled to equal recognition in matters relating to their  children, including birth registration. The Constitutional Court has made it clear that parental  rights in South Africa flow not from marital status but from care, commitment, involvement,  and responsibility. The judgment powerfully advances the constitutional values of dignity,  equality, and children’s best interests, ensuring that the legal system recognises and supports  diverse family structures and promotes complete legal identity for all children.