A child’s birth cannot currently be registered in South Africa if the person (man) doing the registering is an unmarried father, doing so without the consent of the mother of the child.
In some cases, the mother may be be deceased or have absconded and this deprives the child his/her right to registration of birth.
It is Section 10 of the Births and Deaths Registration Act that contains this exclusion, it provides that the mother’s presence or giving of consent is necessary in all scenarios in which a child’s birth can be registered.
By implication, this prevents an unmarried father from registering a birth in the absence of the mother.
This is interpreted as unfair discrimination against the father and the child. It means the law does not recognise them (fathers) as a parent and also it denies the child of a right that the Constitution guarantees to everyone.
Meanwhile, section 9 of the Constitution protects against unfair discrimination.
The discrimination against the child, owing to the consequences it heralds, is also contrary to Section 28(2) of the Constitution, which states that “the best interests of the child are of paramount importance in every matter concerning the child”.
In the event that a child’s birth cannot be registered, that child is essentially rendered stateless.
Under the Convention Relating to the Status of Stateless Persons, “the term ‘stateless person’ means a person who is not considered as a national by any state under the operation of its law”.
Unfortunately, South Africa has not ratified this convention, which diminishes the specificity with which we are obliged to protect stateless persons.