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

The third respondent (Mr Naki), a South African citizen, met the fourth respondent (Ms Ndovya), a DRC citizen, in 2008 in the DRC. They married in accordance with DRC customary law, but this marriage was not registered or recognized in South Africa. They had a daughter (NN) born in Grahamstown in February 2016. When they sought to register NN's birth, the Department of Home Affairs refused because Ms Ndovya's visa had expired and she could not comply with the Regulations requiring a valid passport/visa, despite NN being a South African citizen through her father. Because their customary marriage was not recognized, NN was treated as a child born "out of wedlock" under section 10 of the Births and Deaths Registration Act 51 of 1992 (the Act). Section 10 required that such a child be registered under the mother's surname, or under the father's surname only with the mother's joint request and physical presence. The Centre for Child Law intervened, challenging the constitutionality of sections 9 and 10 of the Act on the grounds that they unfairly discriminated against unmarried fathers and children born out of wedlock, and violated children's rights.

• Whether section 10 of the Births and Deaths Registration Act 51 of 1992 is unconstitutional
• Whether section 10 unfairly discriminates against unmarried fathers on the grounds of marital status, sex, and/or gender in terms of section 9 of the Constitution
• Whether section 10 infringes the right to dignity of unmarried fathers and children born out of wedlock
• Whether section 10 violates children's rights, including the right to a name and nationality from birth (section 28(1)(a)) and the paramountcy principle (section 28(2))
• Whether sections 9 and 10 can be interpreted in a manner that is consistent with the Constitution
• What is the appropriate remedy if section 10 is found to be unconstitutional

The Constitutional Court confirmed the Full Court's declaration of constitutional invalidity with modifications. Section 10 of the Births and Deaths Registration Act 51 of 1992 was declared invalid in its entirety and severed from the Act. The proviso in section 9(2) stating "subject to the provisions of section 10" was also severed. The declaration took effect from the date of the order. The first respondent (Director-General: Department of Home Affairs) was ordered to pay the costs of the applicant in the Constitutional Court, including the costs of two counsel. The majority judgment was delivered by Victor AJ (with Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring). Mogoeng CJ delivered a dissenting judgment (with Mathopo AJ concurring), arguing that the application should be dismissed and sections 9 and 10 should remain intact.

Section 10 of the Births and Deaths Registration Act 51 of 1992 is unconstitutional because it unfairly discriminates against unmarried fathers on the grounds of marital status, sex, and gender, and against children born out of wedlock on the grounds of social origin and birth, in violation of section 9 of the Constitution. The provision also violates the right to dignity (section 10 of the Constitution) of both unmarried fathers and children born out of wedlock. By perpetuating the differential treatment of children based on their parents' marital status, section 10 violates children's rights under section 28 of the Constitution, including the right to a name and nationality from birth and the principle that a child's best interests are of paramount importance. The differentiation serves no legitimate governmental purpose and cannot be justified. Marital status is not a valid basis for denying unmarried fathers the right to register their children's births and confer their surnames. The appropriate remedy is to sever section 10 in its entirety and to sever the proviso in section 9(2) that makes that section subject to section 10. This allows section 9 to operate in a constitutionally compliant manner, permitting either parent, regardless of marital status, to register a child's birth and choose the surname.

The majority judgment made several important observations: (1) Marriage is a choice, and while it is constitutionally recognized, it should not be used as an instrument of discrimination against unmarried persons or their children; (2) The use of the term "born out of wedlock" is a euphemism for "illegitimate" and perpetuates harmful stigma; (3) Advancing the rights of unmarried fathers in this context does not prejudice gender equality but rather enhances substantive equality by abolishing gendered stereotypes that regard women alone as responsible for childcare; (4) The concept of ubuntu supports recognizing the dignity and equal worth of unmarried fathers and their children; (5) Safeguards against human trafficking and fraud (such as biometrics, identity verification, and the Director-General's power to request further particulars) are already built into the registration process and are sufficient without requiring the mother's consent; (6) While there may be rare cases where mothers are unavailable or unreasonably withhold consent, using exceptions as the basis for the entire regulatory framework would yield bad law; and (7) Courts should be reluctant to unduly strain legislative language to find constitutionality, but must also ensure that legislation advances constitutional values. The dissenting judgment emphasized: (1) Marriage is a historically important social institution that serves valuable functions in protecting children and should be distinguished from unmarried cohabitation; (2) The mother's consent requirement serves the legitimate purpose of protecting children's best interests by ensuring that the person registering the child is truly the father and is committed to the child's welfare; (3) The risk of human trafficking and fraudulent registrations justifies requiring the mother's verification; (4) The differentiation does not violate dignity because unmarried fathers are not told their dignity is worth less, only that different requirements apply; and (5) Parliament, not courts, should address any gaps or hardships in the registration system.

This case is significant for several reasons: (1) It eliminates the differential treatment of children born in and out of wedlock in South African law, advancing substantive equality and children's rights; (2) It abolishes the outdated legal category of children "born out of wedlock" which perpetuated the common law distinction between "legitimate" and "illegitimate" children; (3) It recognizes that unmarried fathers have equal rights to register their children's births and confer their surnames, subject only to general registration requirements, not the mother's consent; (4) It affirms that differential treatment based on marital status, sex, or gender in family law must serve a legitimate purpose and cannot be justified merely by reference to "marital supremacy"; (5) It gives practical effect to section 28(2) of the Constitution (the paramountcy of children's best interests) by eliminating legal distinctions that stigmatize and harm children based on their parents' marital status; (6) It recognizes the diversity of family forms in contemporary South Africa and rejects the privileging of marriage as the only legitimate context for childrearing; and (7) It demonstrates the Constitutional Court's willingness to strike down legislation that perpetuates historical discrimination, even when government concedes unconstitutionality, where the majority finds severance to be the appropriate remedy over reading-in.