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[2016] ZAWCHC 80
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Wile and Another v MEC for the Department of Home Affairs, Gauteng and Others (21150/2014) [2016] ZAWCHC 80; [2016] 3 All SA 945 (WCC); 2017 (1) SA 125 (WCC) (24 June 2016)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 21150/2014
DATE:
24 JUNE 2016
REPORTABLE
In
the matter between:
INGRID
ELEANORA
WILE
................................................................................................
1
st
Plaintiff
MARGERITA
JOSEFA MORCHE (born
Kampling)
.......................................................
2
nd
Plaintiff
And
THE
MEC FOR THE DEPARTMENT OF
HOME
AFFAIRS,
GAUTENG
..........................................................................................
1
st
Defendant
THE
NATIONAL MINISTER /DIRECTOR GENERAL
OF
THE DEPARTMENT OF HOME
AFFAIRS
............................................................
2
nd
Defendant
THE
NATIONAL MINISTER /DIRECTOR GENERAL
OF
SOCIAL
DEVELOPMENT
........................................................................................
3
rd
Defendant
JUDGMENT
Before
the Hon. Mr Justice Bozalek
Hearing:
21 April 2016
Judgment
Delivered: 24 June 2016
BOZALEK J
[1]
The first plaintiff in these provisional
sentence proceedings is a 50 year old South African citizen resident
in Cape Town. She
is, in terms of German law, the adoptive daughter
of the second plaintiff, a woman who is a German national and
permanently resident
in Germany. The relief which the plaintiffs seek
calls upon the respondents to authorise the employees of the
Department of Home
Affairs in Johannesburg to give effect to a
judgment granted by the Local Court of Freiburg im Breisgau, Family
Court, in Baden
– Württemburg, Germany, (the ‘
Amtsgericht
Freiburg Im Breisgau, Familien gericht’
)
which I shall refer to as the ‘
German
court’
or ‘
the
court’
. That court’s order,
together with reasons, was annexed to the summons together with a
translation from German to English.
[2]
The relevant portions of the decision and
order of the German court reads as follows:
‘
Decision
(1)
Following the requests by the
adoptive parent and the person to be adopted dated 30 July 2012 and
22 August 2013 respectively, the
adoption of the South African
citizen
Ingrid
Eleonora Wile, born on
t
May 1966
Marital
Status: single
resident
of S 3 Main Road, P, P N 5 A.P, I
-
Person to be adopted –
by
Margereta
Josefa Morche, born on April 1937
Nationality:
German
39
F 2
Marital
Status: widowed
resident
of R 8 B K, G
-
Adoptive Parent –
has
been pronounced
(2)
The adoptee shall henceforth bear
the family name Morche.
(3)
Pursuant to section 1757 para.4 no.
1 of the German Civil Code (BGB), the adoptee shall be given the
additional first name of Merseram
to the effect that her first names
shall from now on be Ingrid Eleonora Merseram.
(4)
…
(5)
If the request was made for the
adoption to have the same effects as those given when a minor is
adopted, the request shall be rejected.
(6)
…’
.
[3]
The order was corrected by the Court on 21
November 2013 to reflect the correct spelling of the first
plaintiff’s name i.e.
‘Eleanora’.
[4]
The reasons for the court’s decision
were given as follows:
‘
REASONS
FOR THE DECISION
The
Local Court of Freiburg Im Breisgau is the competent local court for
this adoption case because the adoptive parent’s
domicile or
place of habitual residence is within the court’s area of
jurisdiction.
In
accordance with article 22 sentence 1 of the Introductory Act to the
German Civil Code (EGBGB), the adoption is governed by German
law
because the adoptive parent is of German nationality.
The
adoption request was duly made (section 1767 para. 2, section 1768
para 1, section 1752 para. 2 BGB).
The
requirements pertaining to age pursuant to section 1767 para. 2,
section 1768 para. 1 and section 1743 BGB have been fulfilled.
The
adoptive parent and person to be adopted were heard in person.
The
adoption was pronounced as a result of all the necessary legal
requirements being met.
The
adoption is based in sections 1767 and 1770 BGB. The requirements
entitling an adoption to have the same effects as those given
when a
minor is adopted pursuant to section 1772 para. 1 BGB have not been
met. The request to this effect made by the adoptive
parent and
person to be adopted was rejected.
The
decision pertaining to the costs was based on section 81 para. 1
sentence 1 of the Act on Procedure in Family Matters and in
Matters
of Non-contentious Jurisdiction (FamFG).’
[5]
The first defendant is cited as the MEC for
the Department of Home Affairs, Gauteng. No such official exists, the
description clearly
confusing provincial and national functions. In
any event when service on this party was sought to be effected
through the State
Attorney, a secretary correctly responded that
there is no MEC for the Department of Home Affairs and therefore she
cannot accept
process. There is, accordingly, no first defendant
before Court. The second and third defendant were cited as the
National Ministers/Directors-General
of the Department of Home
Affairs and Social Development, respectively. This somewhat ambiguous
description was not challenged
by the second and third defendants who
gave notice of their intention to oppose and filed opposing
affidavits. These were deposed
to by the Acting Director-General in
the Department of Social Development and a Director in the
Registration of Births and Deaths
division in the Department of Home
Affairs.
THE
PROCEDURE ADOPTED
[6]
The use of the provisional sentence
procedure by the plaintiffs was entirely inappropriate. Plaintiffs’
counsel relied in
this regard on the fact that the relief sought
turned around the recognition of a foreign judgment and in such cases
proceedings
are often brought using the provisional sentence
procedure. However, this completely overlooks the fact that
provisional sentence
is primarily a mode of procedure providing a
creditor with a speedy remedy for the recovery of monies due where
the plaintiff is
armed with sufficient documentary proof of claim in
the form of a liquid document. The foundation of such a remedy is the
existence
of a liquid document which establishes a fixed and
determinate sum of money, as the commentary in
The
Civil Practice of the High Courts of South Africa, Herbstein and Van
Winsen, Juta 5
th
Ed
at page 1313 et sequor makes clear.
In the present case, the plaintiffs seeks no relief sounding in money
and the enforcement of
the foreign judgment concerns the question of
the first plaintiff’s status, more particularly, the names by
which she is
entitled to be known as.
[7]
The matter has, however, been dealt with by
the parties as if it was brought by way of application and there is a
strong case for
approaching this matter on the basis of its substance
rather than its form, a question to which I shall return later.
[8]
Firstly, however, the nature of the
plaintiffs’ cause of action and the relief sought must be
examined. As initially set out
in the provisional sentence summons,
the relief sought was to give effect, apparently in its entirety, to
the order of the German
court. The only explanation furnished was
that the order had been obtained following requests made in 2012 and
2013, in Germany,
by the adoptive parent (the second plaintiff), a
German citizen and widow, for the adoption of the first plaintiff, a
citizen of
the Republic of South Africa. It was further stated that
second plaintiff, who made the request as the person who raised the
first
plaintiff, was permanently resident in Germany and had ‘
assumed
responsibility’
for the first
plaintiff in order to ensure that she became part of the second
plaintiff’s family.
[9]
The provisional sentence summons alleged
that this Court had jurisdiction over the first plaintiff, a South
African citizen who
had a residential address in Cape Town and was
domiciled within the area of the Court’s jurisdiction. It was
alleged that
only by means of this Court giving the relief sought
that the defendants would be in a position to give effect to such
orders and
to amend the first plaintiff’s name and surname in
the records of the Department of Home Affairs.
[10]
In their opposing affidavits, the second
and third defendants adopted a common position, namely, that the
first plaintiff was adopted
when she was 47 years old and that all
legal issues pertaining to adoption in this country are set out in
the Children’s
Act, 38 of 2005 (‘the Children’s
Act’) which does not provide for adult adoption. South Africa,
it was said,
does not have any legislation providing for the adoption
of majors and therefore the defendants could not recognise or record
the
adoption of the first plaintiff by the second plaintiff. It was
further alleged that sec 26(2) of the Births and Deaths Registration
Act 51 of 1992 (‘the Registration Act’), read with the
relevant regulation, deal with the situation of a person applying
for
change of surname but makes no provision for the basis of the first
plaintiff’s proposed change of surname. Consequently,
it was
alleged, the second defendant was statutorily ‘
prohibited’
from amending the first plaintiff’s surname (although not her
forename). Both defendants asked for the plaintiffs’
claim to
be dismissed with costs.
[11]
The plaintiffs filed replying affidavits
providing more background to the action and their reasons for
instituting it. In her reply,
the first plaintiff focussed on the
aspect of the German court’s order whereby she was authorised
to assume the additional
forename (‘Merseram’) and
surname (‘Morche’) referred to in the summons. She
explained that she left home
at the age of 17, breaking all ties with
her biological family who had rejected and disowned her. She met the
first plaintiff and
was introduced to her family consisting of
herself and her late husband. They did not have children of their own
and decided to
take in the second plaintiff who, in a sense, became
their daughter. The possibility of adoption was often discussed
amongst them
or, if that was not possible, the possibility of the
first plaintiff changing her surname to that of the second plaintiff
and that
of her husband.
[12]
The first plaintiff agreed to assume the
full name and the surname of the second plaintiff and her husband on
condition that they
allowed her to change her forename and surname in
South Africa. Before funds could be obtained to commence any legal
process, the
second plaintiff’s’ husband died in March
2007. Funds then became available and, after a legal opinion was
taken in
South Africa, the German court was approached. That court
required letters and affidavits from friends to testify to the
relationship
between the plaintiffs and in particular whether they
regarded that relationship as one of mother and daughter. The court
then
investigated the second plaintiff’s friends and heard
their evidence. Both the plaintiffs were required to appear before a
German ‘
commissioner/notary’
who was instructed by the court to investigate the relationship
between them and to report to the court which then set a date for
the
hearing of the evidence of both plaintiffs. That evidence was duly
led before the court with the plaintiffs being questioned
by the
court. Thereafter, it granted the order in question.
[13]
Armed with the order, the plaintiffs made
contact with the Department of Home Affairs in Johannesburg to
enquire as to the process
to be followed for the first plaintiff to
change her forename and surname to correspond with the order granted
by the German court.
The advice received from an official was that a
name change was possible in terms of South African law but not
without an ‘
entitlement’
to the surname. Further advice received from the Department was that
the recognition by a South African court of the German court
order
would constitute such an entitlement for the first plaintiff to
assume her new surname in this country.
[14]
The plaintiffs explained further in their
affidavits that the German court’s order was not an adoption
order as envisaged
by the Children’s Act, 38 of 2005 which
provides, inter alia, that a child may be adopted where the adoption
is in the best
interests of the child. They stated that the German
court did not intend to grant an order whereby the first plaintiff
was adopted
by adoptive parents or parent as envisaged in the
Children’s Act but instead granted her leave to change her name
and surname
to that of the family which had accepted her into their
family years ago.
[15]
I pause here to note that some confirmation
of this is to be found in the terms of the German court’s
order, more particularly
paras (2) and (3) thereof which deal
specifically with the names which the first plaintiff would be
entitled to bear and para (5)
which states that the order was not to
be regarded as having the same effect as an order given in the case
of a minor who is adopted.
[16]
The only provisions of the German law to
which I was referred were sections 1767 and 1757 of the German Civil
Code which, to the
extent that they are relevant, read as follows:
‘
Sec
1767
Admissibility
of adoption, applicable provisions
(1)
A person of full age may be adopted
if the adoption is morally justified; this is to be assumed in
particular if a parent –
child relationship has already
developed between the adoptive parent and the person to be adopted.
(2)
The adoption of persons of full age
is governed by the provisions on the adoption of minors with the
necessary modifications, except
as otherwise provided in the
following provisions.’
[17]
Section 1757:
‘
Name
of the Child
(1)
The child receives as its birth name
the family name of the adoptive parent.
(2)
…
(3)
…
(4)
The family court may, on the
application of the adoptive parent, with the consent of the child to
the pronouncement of the adoption:
1. change the
first name of the child or give him one or more than one new first
names, if this is conducive to the best interests
of the child.’
[18]
It was contended by the plaintiffs, and not
disputed by the defendants, that the adoption of the first plaintiff
by the second plaintiff
was morally justified. Given the
circumstances surrounding the adoption as described by the plaintiffs
this, in my view, is not
a conclusion which can be challenged.
[19]
The first plaintiff also explained in
greater length in her replying affidavit, her need for the relief
sought. She stated that
as far as she was concerned as a result of
the German court’s order, her South African identity document
and passport no
longer correctly reflected her particulars. In order
for these documents to reflect the names which the German court’s
order
had allowed her to assume, she needed an order of this Court
giving effect to the German court’s order. She averred further
that the only ‘
good and sufficient
reason’
, as contemplated by sec
26(2) of the Registration Act to change her surname would be an order
of this Court to the effect that
the German court’s order was
binding upon the second defendant in this regard. To the extent that
the relevant regulation
did not prescribe recognition of a foreign
court order as a ground for a change of surname, such grounds were
not exhaustive.
[20]
Thus, to the extent that this may not have
been clear from the provisional sentence summons, the plaintiffs’
replying affidavits
clarified that the first plaintiff’s
interest in the recognition of the German court’s order was
limited to its effect
insofar as it would enable her to effect
changes to her forename and surname in this country.
[21]
The first plaintiff also explained that the
change of her names, as permitted by the German court, did not give
her German citizenship
and that as far as residence in that country
was concerned, she only enjoyed a 90 day visa which had to be
regularly re-issued.
She envisaged that the second plaintiff would in
future need care and support from her which would mean constant
travelling by
the first plaintiff between South Africa and Germany.
As matters presently stood, the process of obtaining a new visa on a
regular
basis entailed her entering and leaving South Africa using
different and confusing names.
[22]
The plaintiffs also made extensive
submissions in their replying affidavits regarding the satisfaction
of the customary requirements
in South African law for the
recognition of foreign judgments, another issue to which I will
return.
[23]
In her replying affidavit, the second
plaintiff testified that she regarded the first plaintiff as her own
child and that her family,
upon her request, decided to request the
first plaintiff to change her name and surname to those of the family
names. The first
plaintiff agreed and advice was taken from an
attorney in Germany who used the word ‘
adoption’
in papers before the German court. However, that court had made it
quite clear that the word ‘
adoption’
was not used in the context of the adoption of a minor child and that
its order did not have the same consequences.
[24]
Finally, as regards the scope of the relief
sought, the draft order put up by plaintiffs’ counsel sought
only that the German
court’s order be ‘
recognised
to the extent that the first plaintiff may be known by the surname
Morche and included amongst her forenames may be Merseram’
.
It was thus made clear that the plaintiffs did not seek direct
enforcement of any provisions of the German court’s order
relating to any other incidences of the adoption order.
THE
ISSUES
[25]
In my view, two main issues fall to be
determined: firstly, the procedural question of whether the
plaintiffs can obtain the relief
they seek through the provisional
sentence procedure. Secondly, assuming this to be the case, the
principal issue is whether, on
these papers, the plaintiffs have made
out a case that the German court’s order should be recognised,
to the limited extent
sought.
THE
PROCEDURAL QUESTION
[26]
Notwithstanding the fact that the
plaintiffs clearly utilised the wrong procedure in seeking the relief
sought, this elicited no
immediate objection or steps from the
defendants. In their heads of arguments, however, it was contended
that the action failed
to meet the requirements for provisional
sentence and, in particular, that the foreign judgment did not
constitute a liquid document
and did not found a claim for the
provisional sentence sought.
[27]
As I have indicated, the provisional
sentence procedure adopted by the plaintiffs was inappropriate but it
was equally inappropriate
for the defendants to have engaged with the
plaintiffs’ case without raising any objection thereto. An
obvious step for the
defendants was to have invoked Rule of Court 30
and applied to court to set aside the summons as an irregular step.
Instead the
defendants engaged with the merits of the action by
filing opposing affidavits. To compound matters they were party to at
least
eight postponements of the matter stretching from February 2015
to 16 March 2016 when the matter was finally postponed for hearing
on
the semi-urgent roll.
[28]
In substance the matter has been treated as
an opposed application and has been allowed to drag out over a period
of 16 months.
In these circumstances to dismiss the claim on the
basis that an inappropriate procedure has been followed would elevate
form over
substance and would ill-serve the interests of justice. It
would mean that should the plaintiffs persist in seeking relief they
will have to commence afresh, presumably by way of application, with
the result that another set of papers will be generated, in
all
material respects probably the same as those which presently serve
before Court.
[29]
As matters stand all the issues between the
parties have been fully ventilated in the existing papers. There do
not appear to be
any disputes of fact and the primary issue between
the parties is a question of law, namely, whether it would be
appropriate for
this Court to recognise, albeit to a limited degree,
the German court’s order. There is, moreover, precedent for the
enforcement
of a foreign judgment by way of a declaratory order,
particularly where there is no dispute of facts. See
Righetti
v Pichen
1955 (3) SA 338
(D)
particularly at 348 A – C and, more pertinently,
Cosmopolitan
National Bank of Chicago v Steinberg
1973 (4) SA 579
(R) particularly at 580 A – C.
[30]
In these circumstances I consider that the
interests of justice and those of the parties are best served by
simply treating the
present proceedings as application proceedings. I
turn now to the substantive question of whether the foreign court
order should
be recognised.
[31]
Broadly
speaking, the requirements for the recognition and enforcement of a
foreign judgment are that the foreign court had ‘
international
competency’
according to South African law, that the judgment is final and
conclusive in its effect and has not become superannuated, that
its
recognition and enforcement would not be contrary to public policy,
that it was not obtained by fraudulent means, does not
involve the
enforcement of a penal or revenue law of the foreign state, and is
not precluded by the provisions of the Protection
of Business Act, 99
of 1978
[1]
. A foreign
judgment can also be impeached on other grounds under the common law.
Before its judgment will be recognised,
certain minimum standards of
justice must have been observed by the foreign court in its
proceedings including that court’s
impartiality, reasonable
notice to affected persons and an application of the
audi
alteram partem
[2]
principle.
[32]
As
far as the requirement of ‘
international
competency’
is concerned, the rules determining this vary according to the legal
issues involved. In Law of South Africa (LAWSA), it is stated
that
the effects of adoption and the rights it creates are as much a
question of status as marriage and divorce and should be treated
in
the same way
[3]
. In the case of
adoption, a foreign adoption order will in principle be recognised if
it was given by a court of the child’s
domicile before adoption
though it is possible that the adoptive parent’s domicile will
prevail
[4]
. Because of the
principle of domestic South African law that the superior courts are
the upper guardian of all minors within their
jurisdiction, our
courts have adopted the doctrine of
McKee
v McKee
,
a Privy Council decision, that the local court can form an
independent judgment before enforcing a foreign custody or
guardianship
order
[5]
. Given,
however, that the first plaintiff was a major when the adoption order
was made by the German court and was a party to that
action, the
question of her not being domiciled in Germany at the relevant time
should in my view, not in itself be an obstacle
to recognition and
enforcement of the order.
[33]
What is at issue in the present matter is
not so much a question of status but whether the right to use a
certain name or names
in a foreign country can form the basis for a
change of names in this country. In these circumstances the question
of whether the
German court’s order should be recognised is, in
the first place, principally a question of whether the German court
had
jurisdiction to issue the order, according to its own law. In
that regard there is nothing in the papers to suggest that the German
court did not have jurisdiction to make the order which is the
subject of these proceedings. The second plaintiff is, it is common
cause, a German national, and was resident in that country at the
time when the order was sought and obtained. The first plaintiff,
although a South African national and domiciled in this country, also
resides in Germany from time to time for temporary periods.
[34]
In its ‘
Reasons
for the Decision’
the German
court stated that it was the ‘
competent
local court for this adoption case because the adoptive parent’s
domicile or place of habitual residence is within
the court’s
area of jurisdiction’
. It
proceeds to state that ‘
in
accordance with article 22 sentence 1 of the Introductory Act to the
German Civil Code, the adoption is governed by German law
because the
adoptive parent is of German nationality’
.
[35]
Another requirement for recognition is that
the foreign judgment must be final and conclusive in its effect and
has not become superannuated.
Again, there is nothing to gainsay the
plaintiffs’ averment that the judgment is a ‘
final
order’
. Neither the order nor the
reasons for the decision suggest that it was anything but final in
effect. The fact that there was no
opposing party or any other
obvious interested party who might have contested the order makes the
case for finality conclusive.
[36]
A
further requirement is that the foreign judgment cannot be impeached
on any grounds under the common law. In this regard, the
only
challenge put up by the defendants is that recognition of the
judgment would be contrary to public policy in this country.
This
consideration is an additional requirement which the plaintiffs must
meet to have the German court’s order recognised.
The authors
of LAWSA state that the exact scope of this overriding check is
unclear although it used to be recognised as applicable
to polygamous
marriages, incestuous marriages and marriages celebrated without the
necessary consent
[6]
. They add
that a contract which is
contra
bonos mores
under South African law, such as a gambling contract or
a
pactum successorium,
would
also be affected. The authors note, however, that the mere fact that
the foreign legal rule is the result of different social,
economic or
political systems does not mean that it offends South African policy
in this sense.
[37]
In
Sperling v Sperling
[7]
,
a case dealing with the South African rule of private international
law prescribing the proprietary consequences of a foreign
marriage,
the court was faced with the argument that it ought not to permit the
matrimonial property regime of persons living in
this country to be
altered by a foreign statute. Linked thereto was the submission that
the property regime of the parties should
be determined by the law of
East Germany but only as it was at the time when the parties came to
settle in South Africa and not
retrospectively. In this regard the
court stated as follows:
‘
This
argument, of course, reaches to the kernel of the matter. As a matter
of general principle, there appears to be nothing untoward
in foreign
legislation touching the rights of persons living in this country.
Were this not permitted, the scope of Private International
Law would
be greatly reduced. The real question is whether this should be
permitted when it affects the property regime of spouses
domiciled
here.’
To my mind similar
considerations apply in the present matter inasmuch as the
defendants’ objection was that this Court’s
recognition
of the German court’s order would amount to recognition of the
institution of adult adoption, a concept not recognised
in our law
and which therefore would require the defendants to act contrary to
the provisions of the Children’s Act. But
in any event there is
another answer to this proposition which is that, on a proper
analysis, this is not the relief which the
plaintiffs seek.
[38]
The relief first sought in the provisional
sentence summons appeared at first blush to be widely cast, namely,
an order authorising
the employees of the Department of Home Affairs
to give effect to the German court’s judgment. Paragraph 15 of
the summons
made it clear, however, that its recognition was sought
only to the extent that it would place the defendants in a position
to
‘
amend the first plaintiff’s
name and surname’
in the records
of the Department. Furthermore, by the time of argument the
plaintiffs had narrowed their relief even further, namely
that the
German court’s order ‘
is
recognised to the extent that the first plaintiff may be known by the
surname Morche and included amongst her forenames may be
Merseram’
.
This order was sought, furthermore, on the basis that this Court’s
recognition of the German court’s order would not
in itself
entitle the first plaintiff to effect a change in her forenames and
surname. Such a step would remain subject to the
administrative
process for such name changes as provided by the Registration Act.
[39]
In my view, the relief sought by the
plaintiffs falls short of a recognition, explicit or implicit, of the
institution of adult
adoption. The German court’s order itself
appears to authorise an adult adoption but one with limited effect
hence its pronouncement
that ‘
if
the request was made for the adoption to have the same effects as
those given when a minor is adopted, the request shall be rejected’
and by the court’s focus on the
consequential change of names for the first plaintiff.
[40]
Admittedly, it remains unclear, apart from
the changes to the first plaintiff’s names, precisely what the
effect of the adoption
order is on her since the papers do not
address this issue. Be that as it may, the recognition sought by the
plaintiffs of the
German court’s order is limited to its effect
upon the first plaintiff’s names. In these circumstances the
argument
that granting the limited relief sought would amount to the
recognition by this Court of the institution of adult adoption is in
my view exaggerated and without merit.
[41]
The defendants’ counsel, Ms Slingers,
had a second string to her bow, namely, the contention that
recognition of the German
court’s order would require the
second defendant to act contrary to
sec 26
of the
Births and Deaths
Registration Act. That
section, it was submitted, read with the
regulations promulgated thereunder, whilst permitting the first
plaintiff to alter her
forename, provided it is done in the
prescribed manner, makes no provision for her to change her surname
in the circumstances which
exist.
[42]
In terms of sec 26(2) of the Registration
Act, ‘
the Director-General: may,
if he or she is satisfied that there is a good and sufficient reason
as may be prescribed for that person’s
assumption of another
surname, authorize the person to assume a surname other than his or
her surname as included in the population
register.’
[43]
Regulation
18 of the regulations promulgated by the Minister of Home Affairs in
terms of sec 32 of the Act
[8]
,
deals with the assumption of another surname and purports to limit
the reasons for such a change to three listed reasons, none
of which
apply to the first plaintiff’s circumstances. Thus, it was
contended on behalf of the defendants, Regulation 18,
read together
with section 26 of the Registration Act, precluded the
Director-General from effecting the surname change sought
by the
first plaintiff.
[44]
In order to evaluate this argument, it is
necessary to set out the relevant parts of sec 26 and Regulation 18.
Section 26 reads
as follows:
‘
26
Assumption of another surname
(1)
Subject to the provisions of this
Act or any other law, no person shall assume or describe himself or
herself by or pass under any
surname other than that under which he
or she has been included in the population register, unless the
Director-General has authorized
him or her to assume that other
surname: Provided that this sub-section shall not apply when –
(a)
a woman after her marriage assumes
the surname of the man with whom she concluded such marriage or after
having assumed his or her
surname, resumes a surname which she bore
at any prior time;
(b)
a married or divorced woman or widow
resumes a surname which she bore at any prior time; and
(c)
a woman, whether married or
divorced, or a widow adds to the surname which she assumed after the
marriage, any surname which she
bore at any prior time.
(2)
At the request of any person, in the
prescribed manner, the Director-General may, if he or she is
satisfied that there is a good
and sufficient reason as may be
prescribed for that person’s assumption of another surname,
authorize the person to assume
a surname other than his or her
surname as included in the population register, and the
Director-General shall include the substitutive
surname in the
population register in the prescribed manner.’
[45]
To the extent that it is relevant
Regulation 18 provides as follows:
‘
18
Assumption of another surname
(1)
An application for assumption of
another surname referred to in section 26 of the Act by a person of
age must be made on Form …
(2)
The reasons referred to in sec 26(2)
of the Act must relate to –
(a)
a change in the marital status of a
woman;
(b)
assumption by a person of his or her
biological father’s surname, where the father has recently
acknowledged paternity
in terms of regulation 13 or 14; or
(c)
protection of a person in terms of
the Witness Protection Act, 1998 (Act 122 of 1998).
(3) …’
[46]
It will be seen that Regulation 18(2)
purports to limit the permissible reasons for the assumption of
another surname to only three
categories (one of which, a woman’s
marital status, is already covered by the provisions of sec 26(1). It
was on this basis
that the defendants’ counsel submitted that
the relief sought by the first plaintiff was incompetent inasmuch as
her reasons
for assuming another surname could not be entertained by
the Director-General.
[47]
In my view, to the extent that Regulation
18 seeks to establish a closed list of reasons for the assumption of
another surname,
it is
ultra vires
in that it misconceives the meaning and scope of sec 26(2) of the
Act, as does the defendants’ argument based on this
interpretation
of the regulation.
[48]
Section 26(2), in providing that a surname
may be changed if the Director-General is satisfied ‘
that
there is
a
good and sufficient reason’
is
cast in wide terms. This is understandable since, apart from the
reasons listed in Regulation 18, one can readily conceive of
many
other reasons why a person might, legitimately, wish to change his or
her surname. By way of example, that person’s
existing
surname may cause him or her embarrassment because of its meaning or
associations, or it may be unpronounceable to all
but a few persons.
It would be strange indeed if, no matter how compelling a reason a
person had for the change of a surname, he
or she was precluded from
doing so because that reason was not included in the three categories
prescribed in Regulation 18.
[49]
The words ‘
as
may be prescribed’
in sec 26(2)
do not, in my view, limit the phrase ‘
a
good and sufficient reason’
. What
they convey is merely that, for whatever reason the authorities may
have, the Minister may wish to prescribe certain reasons
which, all
things being equal, will automatically be regarded as ‘
a
good and sufficient reason’
for a
person to assume another surname. It is significant that the words
‘
as may be prescribed’
are permissive and not prescriptive. Had it been the intention of the
Legislature that a closed list of ‘
good
and sufficient reason(s)’
could
be prescribed by regulation then the words ‘
good
and sufficient’
would arguably
have been unnecessary. Furthermore, the word ‘
may’
would not have been used but rather a peremptory formulation such as
‘
as prescribed’,
or some variation thereof, indicating that only name changes for
prescribed reasons could be permitted.
[50]
That the phrase ‘
as
may be prescribed’
is merely
permissive is borne out by the signed, Afrikaans version of the Act
where the relevant part of sec 26(2) is rendered
as follows:
‘
(2)
Op aansoek, op die voorgeskrewe wyse, van ‘n persoon kan die
Direkteur-Generaal, indien hy of sy oortuig is dat daar ‘n
gegronde rede is, soos voorgeskryf
kan
word, vir die persoon se aanname van ‘n ander van, die persoon
magtig om ‘n ander van as sy of haar van soos in die
bevolkingsregister opgeneem, aan te neem..’
[my
underlining]
[51]
In my view, both the punctuation in the
text (in the form of the commas before and after ‘
soos
voorgeskryf kan word’)
and the
use of the word ‘
kan’
emphasise that the power to prescribe ‘
gegronde
redes’
is permissive and is a
contra-indication that the Minister enjoys the power to prescribe by
regulation a closed list of reasons
which, if not applicable to an
applicant for a name change, has the result that his or her
application must fail.
[52]
The
narrow interpretation contended for by the defendants would, moreover
conduce to the Minister enjoying what borders on legislative
powers
to definitively determine, at any one time, what constitutes a ‘
good
and sufficient reason’
for a name change, with the result that the Director-General would
then have to close his mind to all other applications based
on
different reasons. Such a narrow interpretation also runs counter to
the presumption that remedial statutes should be liberally
construed
[9]
.
[53]
For these reasons, I am satisfied that on a
proper interpretation of sec 26(2) of the Registration Act, there can
be no closed list
of ‘
good and
sufficient reason(s)’
and to the
extent that Regulation 18(2) purports to decree otherwise, it is
ultra vires
.
[54]
A further argument as to why the relief
sought could not be granted, under the rubric of it being repugnant
to policy, was raised
by the defendants’ counsel. The
contention was that an additional requirement of the recognition of a
foreign non-monetary
judgment was that it should be clear and
specific in order that the domestic court can ascertain what rights,
duties and obligations
the foreign order imposed, in this case on the
defendants. Again I consider that there is no merit in this argument
since the relief
sought by the first plaintiff is limited to a
recognition of the German court’s order only insofar as it
authorised her to
use the surname of the second plaintiff and a
family forename.
[55]
It was also contended that a further
requirement was that the foreign judgment should be clear about
whether it was intended to
apply outside the jurisdiction in which it
was made. It is correct that there is no such indication in the
German court’s
judgment to this effect but common sense
suggests that it must have been contemplated by that court, at least,
that its judgment
would place the first plaintiff in a position where
she could invoke an administrative procedure in another country in
which she
is permanently resident with a view to changing her name in
accordance with the name change authorised by the German court’s
judgment.
[56]
Finally, there is the question of whether
the judgment was obtained without observance of the principles of
natural justice. It
was quite clear from the plaintiffs’
affidavits, nor has it been disputed by the defendants, that there
was a full and open
investigation of their application before the
German court pronounced
inter alia
on the first plaintiff’s adoption and her right to change her
names. There was no suggestion on behalf of the defendants
that the
audi alteram partem
principle
,
or for that matter any other principle
of natural justice, was not observed by the German court in arriving
at its conclusion. The
only persons who might have had an interest in
the adoption proceedings were the first plaintiff’s biological
parents, presuming
they are still alive. On this the plaintiffs’
papers are silent apart from the averment that the first plaintiff
has long
been estranged from her original family. I do not regard
this omission as a fatal flaw, however, since the first plaintiff is
an
adult and entitled to choose to be adopted, as an adult, in a
foreign country which recognises such an institution.
[57]
In the circumstances, I am satisfied that
the limited recognition of the foreign judgment sought by the first
plaintiff will not
offend against public policy in this country. The
result is, further, that the opposition by the defendants to the
relief sought
by the plaintiffs on this ground, cannot be sustained.
[58]
For these reasons, I consider that this
Court would be justified in recognising the German court’s
order to the extent that
it gave effect to a change in the surname of
the first plaintiff and afforded her another forename. It should be
clear, however,
that this Court’s recognition of that judgment
does not, in and of itself, entitle the first plaintiff to change her
forename
or surname in this country without further ado. That must
still be the subject of an administrative application to the second
defendant.
This Court’s judgment will, however, allow the first
plaintiff to rely on this Court’s recognition of the German
court’s
order insofar as it changed her surname to ‘
Morche’
and allowed her to take the additional forename ‘
Merseram’
.
COSTS
[59]
As indicated earlier, this matter has been
subject to at least eight postponements. Three of these, between
February and June 2015
appear to have been occasioned by the fact
that the second and third defendant took some time to get to grips
with the matter and
file opposing papers notwithstanding that service
of the summons had been effected upon them in November 2014. The
defendants tendered
the wasted costs occasioned by the postponement
in 3 June 2015 thereby. The reasons for the balance of the
postponements are less
clear although a few appear to have been as a
result of no judge being available. There is no indication that any
postponement
was the result of fault on the part of the plaintiffs
and therefore no reason why they should not be awarded their costs in
full,
subject to the proviso that the defendants cannot be prejudiced
by the fact that the plaintiffs used out of town attorneys and
counsel.
ORDER
[60]
In the result the following order is made:
1.
The Order granted by the Local Court of
Freiburg im Breisgau, Family Court, ‘Amtsgericht Freiburg Im
Breisgau, Familiengericht’
on 16 October 2013, as corrected on
21 November 2013, to the extent that it provides that the first
plaintiff shall henceforth
bear the family name ‘Morche’
and is given the additional forename of ‘Merseram’, is
recognised;
2.
The first plaintiff is hereby authorised to
utilise the Order referred to in para 1 above in support of
applications for name changes
in terms of
sec 24
and
26
of the
Births
and Deaths Registration Act, 51 of 1992
;
3.
The
second and third defendant are to pay the costs of this application,
jointly and severally, the one paying the other to be absolved.
BOZALEK
J
APPEARANCES
For the
Plaintiffs: Mr GH Meyer
Instructed
by:
Nerina
Wessels Attorneys
For the 2
nd
& 3
rd
Defendants: Ms H Slingers
Instructed
by: The State Attorney
[1]
Jones
v Krok
[1994] ZASCA 177
;
1995 (1) SA 677
(A).
See
also Purser and Another v Sales and Another
[2000] ZASCA 135
;
2001 (3) SA 445
(SCA)
[2]
LAWSA
Second edition Vol 2
Part 2
para 345
[3]
Board
of Executors v Vitt
1989
(4) SA 480
(C) at 485 D
[4]
LAWSA
supra para 351
[5]
LAWSA
supra para 350 and the authorities there cited
[6]
LAWSA
Vol 2 para 293
[7]
1975
(3) SA 707
(A)
[8]
Published
under GN R128 in GG 37373 of 26 February 2014 (with effect from 1
March 2014)
[9]
See
Looyen
v Simmer & Jack Mines Ltd and Another
1952
(4) SA 547
(A)