{"id":247435,"date":"2023-01-16T16:52:19","date_gmt":"2023-01-16T14:52:19","guid":{"rendered":"https:\/\/www.groundup.org.za\/article\/regulation-stopping-undocumented-people-registering-as-childrens-fathers-ruled-unconstitutional\/"},"modified":"2023-01-16T16:52:19","modified_gmt":"2023-01-16T14:52:19","slug":"undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules\/","title":{"rendered":"Undocumented unwed fathers cannot be excluded from their children\u2019s birth certificates, court rules"},"content":{"rendered":"<div id=\"article_body\">\n<p><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/Graphics\/lisa_nelson\/the-constitution.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2023\/01\/undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules.jpg\"><\/a><\/p>\n<p class=\"caption\">Illustration: Lisa Nelson<\/p>\n<ul>\n<li>The Eastern Cape High Court in Gqeberha has found a regulation that was stopping undocumented fathers from being registered on their children\u2019s birth certificates unconstitutional.<\/li>\n<li>The regulation affects the rights of thousands of children simply through the circumstances of their births, Judge Mbulelo Jolwana said.<\/li>\n<li>He said it was \u201cirrational\u201d and it had never gone through a parliamentary process.<\/li>\n<li>The rights of citizens cannot be subject to the whims or attitudes of officials in government offices, the judge said.<\/li>\n<\/ul>\n<p>A regulation preventing the naming of a foreign, unmarried father who is in South Africa illegally on his child\u2019s birth certificate is unconstitutional, the Eastern Cape High Court in Gqeberha has ruled.<img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2023\/01\/undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules.gif\" width=\"1\"><\/p>\n<p>Judge Mbulelo Jolwana said the regulation, which provides that a foreign father of a child born out of wedlock must submit a copy of his valid passport, visa, permit, permanent residency, ID document or refugee identity document in order to be registered, was not only irrational but was contrary to the best interest of the child.<\/p>\n<p>It was also at odds with the Births and Deaths Registration Act which imposed no such rule.<\/p>\n<p>The matter before Judge Jolwana was brought by the unmarried biological parents of a young child. The mother is South African. The father is Bulgarian and his visa has expired.<\/p>\n<p>Officials at the Department of Home Affairs refused to register him as the father on his child\u2019s unabridged birth certificate, saying he was no longer legally in the country and because he was not a South African citizen, he had to undergo a paternity test.<\/p>\n<p>The couple launched a court action for an order compelling the department to include the fathers name on the birth certificate and challenging the constitutionality of the relevant regulation.<\/p>\n<div class=\"editor-summary\"><strong>Read the full judgment <a href=\"https:\/\/www.groundup.org.za\/media\/uploads\/documents\/home_affairs.pdf\">here<\/a><\/strong><\/div>\n<p>Judge Jolwana noted that the Minister of Home Affairs had initially opposed the matter, citing the father\u2019s illegal presence in the country and that the regulation \u201cmade it impossible\u201d to include the father\u2019s name on the certificate.<\/p>\n<p>During the hearing, his lawyers made a \u201c180 degree turn\u201d and conceded the issues, claiming that the regulation actually did not apply in this matter.<\/p>\n<p>But the couple said the constitutional issue still needed to be aired given that it was a matter of significant public interest.<\/p>\n<p>Lawyers for the minister said that given their capitulation, it was not necessary and the issue was now \u201cmoot\u201d.<\/p>\n<p>But Judge Jolwana said they had not explained their earlier stance and their \u201cchange of tack\u201d and it called for an explanation.<\/p>\n<p>\u201cIt is impossible to appreciate what informed this sudden change and it makes it even difficult to resist the temptation to conclude that the sudden change of mind was in bad faith, designed to cripple and disable the court from enquiring into the constitutionality of the regulation \u2026 which continues to bedevil children born in similar circumstances as the child in this matter.<\/p>\n<p>\u201cAs can be gleaned from [the minister\u2019s] affidavit, every day in all Department of Home Affairs offices throughout the country, those seeking the registration of their details in the birth records of their children are turned away if their fathers happen to be illegal foreigners,\u201d the judge said, noting that there had been no concession regarding the constitutionality or otherwise of the regulation.<\/p>\n<p>\u201cRights of citizens cannot be subject to the whims or attitudes of the attending officials in government offices \u2026 courts must act when rights, especially the rights of children, are allegedly being undermined.<\/p>\n<p>\u201cThe court cannot ignore the fact that there may be literally thousands of other children who are treated no differently from this child, even as we speak \u2026 an inquiry into the constitutionality of this regulation is a matter of public importance.\u201d<\/p>\n<p>Judge Jolwana said neither the Constitution nor the Children\u2019s Act distinguished between children on the basis of the citizenship of their parents.<\/p>\n<p>The couple, he said, contended however that the regulation discriminated against their child, who was a South African citizen, because of the circumstances of birth.<\/p>\n<p>In the matter before him, the fact that the father had been unable to renew his visa \u201chas nothing to do with the child and his right to have the identity of his father officially recognised\u201d.<\/p>\n<p>Judge Jolwana said the regulation was \u201cirrational\u201d, noting that it had not gone through any parliamentary process and flew in the face of international instruments dealing with the rights of children.<\/p>\n<p>The Act itself made no distinction between local and foreign fathers \u2013 those legally in the country and those that are not.<\/p>\n<p>He declared the regulation to be unconstitutional and ordered the minister to pay the costs on a punitive scale, noting the last-minute about turn.<\/p>\n<p>\u201cFor them to force people such as the applicants to approach court, only to admit that they were wrong from the onset, is troubling,\u201d the judge said.<\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2023 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2023\/01\/undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Illustration: Lisa Nelson The Eastern Cape High Court in Gqeberha has found a regulation that was stopping undocumented fathers from being registered on their children\u2019s birth certificates unconstitutional. The regulation affects the rights of thousands of children simply through the circumstances of their births, Judge Mbulelo Jolwana said. He said it was \u201cirrational\u201d and it [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":247436,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-247435","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2023\/01\/undocumented-unwed-fathers-cannot-be-excluded-from-their-childrens-birth-certificates-court-rules.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/247435","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=247435"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/247435\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/247436"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=247435"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=247435"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=247435"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}