In what The Mercury calls a victory for children whose unmarried foreign fathers are either outside the country or illegally here, a court has now declared regulations which barred these fathers from having their names reflected on the child’s unabridged birth certificates as unconstitutional.

Eastern Cape High Court (Gqeberha) Judge Mbulelo Jolwana said it was both the child’s and the father’s right to have his identity reflected on the birth certificate.

Regulation 12(2)(c) of the Births & Deaths Registration Act bars an unmarried foreign father, who is either outside the country or illegally in SA, to have his details added to his child’s birth certificate.

As things stand, only unmarried foreign fathers who are legally in SA may have their details appear on the unabridged birth certificate.

The court application was sparked by the unmarried biological parents of a child.

The mother is a South African citizen and the father a citizen of Bulgaria, who came to SA on a visa which has now expired. This rendered his presence in SA illegal. The parents attempted to register the father as such with the Department of Home Affairs, but this was refused because he was no longer legally in the country due to visa difficulties and because he was not a South African citizen.

Jolwana pointed out that Home Affairs’ stance was that the provisions of the Act prohibited it from adding this father’s details to the child’s birth certificate.

The judge reasoned that it was thus important to further ventilate this issue.

‘When courts do become aware of possible unconstitutional conduct that undermines constitutional rights, it must follow that they are required to act and deal with any unconstitutionality decisively … This is more so in a country like ours in which the majority of the people are both poor and uneducated which indeed is a double whammy for such people, so to speak,’ the judge said.

According to the report in The Mercury, Jolwana added: ‘I am of the firm view that for the courts to look away when they become aware of constitutional violations, taking comfort in some vague technical argument on mootness is not in keeping with the courts’ duty as the ultimate arbiters on constitutional rights. After all, courts are the last bastion of protection for ordinary people when their rights are being rendered nugatory, even if unwittingly by government officials.’

The judge said none of the father’s visa difficulties had anything to do with the child and his right to have the identity of his father officially recognised.

‘On the respondents’ submissions, the event of the expiry of a visa must determine if the child who is born should be allowed to have a birth certificate with full details of his or her father. This defies all sense of logic,’ the judge said in rendering the provisions as unconstitutional.

Full report in The Mercury (subscription needed)

Judgment