The High Court in Gqeberha delivered an important judgment for children on the 10th of January this year. In the matter of J and Another v the Minister of Home Affairs and Another, the court made a ruling declaring Regulation 12(2)(c) of the Birth and Deaths Registrations Act 51 of 1992 unconstitutional. The facts of the case are as follows:
J (the first applicant) is a South African citizen and the mother of a child born out of wedlock, and G, his father, is a Bulgarian citizen who entered the country on a visa that has since expired – making his presence in South Africa illegal. The applicants sought to add G’s name to the child’s birth certificate as the father of the child, which the Department of Home Affairs declined on the basis that G had to provide proof of paternity (i.e. a paternity test) and produce an order of court to allow the Department to add the father’s name to the child’s birth certificate. The applicants obtained a paternity test and then applied to the Eastern Cape Division of the High Court in Gqeberha for the order as requested. However, the Department then opposed that application, stating that Regulation 12(2)(c) prevented them from adding the particulars of the father to the birth certificate because he has no valid papers.
Regulation 12(2)(c) provides that where a child is born out of wedlock to a father who is not a South African citizen and said father requests to be added to the birth certificate of the child (with the mother’s consent), the father shall furnish the Department with a certified copy of a valid passport and a valid visa, or permanent resident’s ID, or refugee ID. Essentially, this regulation makes it such that a father to a child born out of wedlock can only be added to the child’s birth certificate if they are in the country legally. The applicants argued that this regulation was discriminatory, and the court agreed.
The court held that it was irrational for the Minister of Home Affairs in making these regulations to distinguish between children based on the immigration status of their non-citizen fathers. This is especially so considering that the Act itself does not distinguish them in this way. Further, the court stated that a child’s paternity is intrinsically linked to their identity and cultural identity and as such this regulation infringed on the right of the child to dignity and the responsibility of the State to respect, promote, protect, and fulfil the Bill of Rights. The court subsequently declared the Regulation unconstitutional and directed the Department of Home Affairs to amend the child’s birth certificate so that it reflects G as the biological father.
What does this judgment mean for foreign nationals in South Africa?
This case was concerned with protecting the best interests of the child and providing direction to the Department of Home Affairs on how to deal with children born of illegal or undocumented foreign nationals. Importantly, the judge was clear that registering the father’s particulars on the child’s birth certificate did not bar the Department from deporting or otherwise dealing with a father who is in the country illegally. Rather, the case concerns itself solely with the protection of the rights of minor children.
For foreign nationals in South Africa, this will have a wide reaching effect. Pending confirmation by the Constitutional Court, the impact of the judgment is that all children born out of wedlock will have the right to have their father’s particulars recorded on their birth certificate, regardless of the citizenship of their father, the legality of their presence in South Africa, and even the lack of their presence where there are not in the country or are unwilling to travel to the country. The requirements for the mother’s consent or for an order of court in the absence of such consent, and for proof of paternity in the form of a paternity test, however, remain.
By Grace Moyo