Pretoria - In a victory judgment 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 reflect on the child’s unabridged birth certificates, as unconstitutional.
An Eastern Cape High Court judge said it was both the child and the father’s right to have his identity reflected on the birth certificate.
Regulation 12(2)(c) of the Births and Deaths Registration Act bars an unmarried foreign father, outside the country or illegally in South Africa, to have his details added to his child’s birth certificate. Only unmarried foreign fathers legally in South Africa, may have their details appear on the unabridged birth certificate.
The application was sparked by the unmarried biological parents of a child, who live together as husband and wife but they are not married.
The mother is a South African citizen and the father a citizen of Bulgaria, who came to South Africa on a visa which has now expired. This rendered his presence in South Africa illegal.
In terms of Bulgarian law, the child is entitled to Bulgarian citizenship. But the Bulgarian Embassy will not process the child’s registration as a Bulgarian citizen without a full birth certificate reflecting his father’s names on it.
The parents (applicants) tried to register the father as such with Home Affairs, but this was refused because he was no longer legally in the country due to visa difficulties and, as he was not a South African citizen.
It said if the father wanted his name reflected, his only option was to undergo a paternity test and to obtain a court order that his details be added to the child’s birth certificate.
The department nonetheless vigorously opposed the application and, to the surprise of the judge hearing the matter, only conceded to adding the father’s details while the parties squared off in court.
“When courts become aware of possible unconstitutional conduct that undermines constitutional rights, they are required to act and deal with any unconstitutionality decisively … ” the judge said.
“Courts are the ultimate arbiters on constitutional rights and 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’s right to have the identity of his father officially recognised.
“Home Affairs’ submissions that the expiry of a visa must determine if the child should be allowed to have a birth certificate with full details of his or her father defies all sense of logic,” the judge said.
Pretoria News