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

Section 10 of the Births and Deaths Registration Act 51 of 1992 created a bifurcated system for registering the births of children born out of wedlock, effectively requiring the mother’s presence or consent for an unmarried father to register a child under his surname. The matter arose against the factual background of Mr Naki, a South African citizen, and Ms Ndovya, a Congolese national without a valid visa, whose child’s birth could not be registered because the Department of Home Affairs refused registration and did not recognise their customary marriage. The Centre for Child Law intervened and challenged the constitutionality of section 10, arguing that it unfairly discriminated against unmarried fathers and children born out of wedlock, and infringed children’s constitutional rights, including the right to a name, dignity, equality, and the paramountcy of the child’s best interests.

The declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act 51 of 1992 was confirmed. Section 10 was declared invalid in its entirety and severed from the Act. The proviso in section 9(2) stating that it is “subject to the provisions of section 10” was also severed. The declaration of invalidity took effect from the date of the order. The first respondent was ordered to pay the applicant’s costs, including the costs of two counsel.

This judgment is significant for advancing equality and children’s rights in South African law. It abolishes discriminatory distinctions between children born in and out of wedlock in birth registration and affirms that unmarried fathers have equal standing in registering their children’s births. The case reinforces the paramountcy of the best interests of the child and ensures greater access to birth registration, nationality, and associated socio-economic rights, particularly for vulnerable children.