A Makhanda (Grahamstown) father desperate to keep his family together has won a landmark legal victory after a judge ruled that a law barring him from registering the birth of his child was unconstitutional.
Liesl Muller, of Lawyers for Human Rights, said the judgment was highly significant as it removed clear gender discrimination from home affairs regulations.
“Many of my clients are single dads trying to register their children’s births [in cases] where the mother is foreign and undocumented or absent, or where she has abandoned the children,” she said.
“This judgment will help many children.”
Lawyers for Human Rights have handled 780 similar cases since January last year.
Without a birth certificate, children cannot access social welfare or health benefits, or go to school.
Last week, acting judge Apla Bodlani, sitting in the Grahamstown High Court, declared as unconstitutional a blanket ban on birth registrations by parents whose circumstances do not adhere to the department’s checklist, and has sent the regulations back to parliament to be fixed.
The ban hit, in particular, families in which one parent was a foreigner, and undocumented parents.
While South African law states that a child is a citizen of the country if one or both of their parents are South African, South African fathers who have children with foreign women are also, in certain circumstances, required to obtain DNA tests to prove that the child is theirs.
Home affairs regulations bar the registration of a child’s birth when the father is South African but the mother is undocumented or not present.
The father, South African National Defence Force soldier Mzileni Naki, is one of scores of men who were barred from registering the births of their children under this regulation.
The regulations also affected children conceived as a result of rape and orphans.
The department of home affairs requires fathers who have had children with undocumented foreign women to pay thousands of rands for DNA tests before the births of their children are registered.
Legal Aid SA is dealing with 30 cases involving the refusal by home affairs to register children in the Eastern Cape without a DNA test.
Lawyers for Human Rights has started an international fundraising campaign to fight the regulations and save a further 50 children from statelessness.
Naki met his wife, Dimitrila Ndovya, while stationed in the Democratic Republic of the Congo as a peacekeeper.
They were married in a traditional ceremony in the DRC and had two children there.
Customary marriages are not registered in the DRC.
When Naki’s wife came to visit him in September 2015 following his return home, she was pregnant with their third child.
When she was required to leave after her visa expired, she was barred from travelling for medical reasons.
The child was born on February 1 2016 at the Settler’s Hospital in Grahamstown.
Home affairs officials in Grahamstown refused to accept their application for a birth certificate, claiming on two occasions that the regulations prevented them from registering the child’s birth.
Naki, represented by wellknown human rights advocate Sarah Sephton, approached the Grahamstown High Court in a bid to get his child registered and to have the home affairs regulations dealing with the registration of births declared unconstitutional.
The Centre for Child Law joined the parents’ case.
The matter was initially opposed by the department of home affairs, but the state attorney’s office failed to file any papers in this regard.
In April this year, the court ordered that home affairs officials should register the child’s birth.
In his judgment last week, Bodlani found that parents, regardless of their marital status, should have the right to register the births of their children.
He said a part of the regulations barring outright the registration of a child’s birth in certain circumstances was unconstitutional.
The rest of the regulations could be fixed by reading it in a way to include fathers.
“There is nothing in the regulations that forbids an unmarried father from registering the birth of his child,” he said.
According to Lawyers for Human Rights, there are a growing number of stateless children who are left vulnerable by the refusal of home affairs to register their births.
“Despite its international and domestic obligations, South Africa’s legislative framework collectively creates and perpetuates childhood statelessness,” it said in a statement.
“South Africa is regrettably not a signatory to the 1954 UN Convention on the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness.”
According to a recent instruction from the home affairs director-general, a birth certificate cannot be issued without a positive DNA test for a child where one or both parents are foreign, the child was born out of wedlock and the birth was not registered within 30 days.
“There is only one service provider [the National Health Laboratory Service] whose tests are accepted by the department and they are much more expensive than most private laboratories,” Muller said.
“There are only six of the labs countrywide and you can only get an appointment in six months – and then you have to wait another six weeks for results,” she said.
“We believe that what home affairs is doing is prejudicing children. You can’t punish the children because you want to introduce punitive measures against the parents.”
Muller said this was also counter to international law that barred governments from introducing punitive measures with birth registration.
She said they would be attacking the constitutionality of the DNA requirement in upcoming cases.
Muller also said the problem of stateless children was an escalating one.
“I can see our cases are increasing. There is a great reluctance from home affairs to help register these births.
“We have reached a stage where you cannot register an abandoned child or the child of undocumented mothers without an attorney.”
They were hoping to spread the word to social workers, who could refer undocumented children for help.