The Constitutional Court has declared section 10 of the Births and Deaths Registration Act – which does not allow an unmarried father to register his child's birth under his surname, unless the mother is present or gives consent – unconstitutional.

In a judgment by Justice Margaret Victor, which was read out by Justice Steven Majiedt, the court found there was no justification for differentiating between married and unmarried fathers.

‘Section 10 of the Act impairs the dignity of unmarried fathers, whose bonds with their children are deemed less worthy than the children of married parents,’ Majiedt said, according to a News24 report.

The apex court confirmed a 2020 ruling by the Eastern Cape High Court, which found the Act invalid and inconsistent with the Constitution.

Chief Justice Mogoeng Mogoeng was one of two dissenting justices.

He acknowledged that the Act discriminated against unmarried fathers, but held the discrimination was reasonable, justifiable and fair. 

‘The Chief Justice holds that children are vulnerable and their best interests are of paramount importance in issues that concern them have to be addressed,’ said Majiedt.

Full News24 report

Judgment