Section 9(1) of the Births and Death Registration Act 51 of 1992 (The Act) provides for the notification of any child ‘born alive’; and Section 9(2) provides that this notification is ‘subject to the provisions of Section 10’. The right of the un-married parent to report the birth of a child in the absence of the mother: Section 10 deals with the announcement of the birth of the child out of marriage, an un-married father’s right under Section 9(1) depends on either the presence of the mother (s 10(1)(b)) or her permission (s 10(2)).

In Center for Child law v Director-General: Department of Home Affairs and Others 2020 (6) SA 199 (ECG) found that s10 indirectly prevented an un-married father of a child born out of wedlock from giving notice of the birth of the child under his surname if the mother had been absent. The ECG ruled that this was not only discriminatory against the father of a child born out of wedlock, but also against the child born out of wedlock, according to Rugunanan J (Revelas J and Mapoma AJ concurring). In the case of an un-married father, discrimination was a clear breach of his right to equality on the basis of marital status on (s 9(3) of the Constitution). Where the child was born out of wedlock, discrimination was arbitrary because it had the effect that a birth certificate could be refused to the child who had a valid claim to a nationality from birth in the absence of the mother’s cooperation. Accordingly, s 10 of the act was found inconsistent with the constitution and unconstitutional to the degree that it did not allow an un-married person to be un-married.

As the required remedy, the court ordered a reading-in or replacement to expunge the bar posed by s 10 and to include a procedure to inform a child born out of wedlock in the surname of their father where the mother was absent.