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[2023] ZAECQBHC 1
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U.J.D.J and Another v Minister of Home Affairs and Another (1986/2021) [2023] ZAECQBHC 1; 2023 (4) SA 279 (ECGq) (10 January 2023)
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Certain
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HEADNOTE:
CHILDREN AND BIRTH CERTIFICATE
Family
– Children – Birth certificate – Father’s
details where child born outside marriage –
Requirement
that father be legally in South Africa –
Births and Deaths
Registration Act 51 of 1992
– Regulation 12(2)(c) of the
Births and Deaths Registrations Act is unconstitutional and
invalid in so far as the
child’s unmarried father may not
be in South Africa or may not be in South Africa legally.
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: GQEBERHA]
CASE NO. 1986/2021
In the matter between:
U [....] J [....] D
[....] J [....]
1
1
st
Applicant
V [....] K [....]
G [....]
2
nd
Applicant
and
MINISTER OF HOME
AFFAIRS
1
st
Respondent
MS MBEBE
NO
2
nd
Respondent
JUDGMENT
JOLWANA J:
Introduction.
[1] This matter concerns
the amendment of an abridged birth certificate of a minor child (the
child) to include the details of the
child’s biological father.
Put differently, it is about the amendment of the birth registration
records of the child at the
Department of Home Affaris to reflect the
second applicant as the father of the child. Both applicants are the
biological parents
of the child who, for all intents and purposes,
live together basically as husband and wife even though they are not
married. The
first applicant, the mother of the child is a South
African citizen. The second applicant, the father of the child is a
citizen
of Bulgaria who came to South Africa on a VISA. However, that
VISA expired and that made his presence in South Africa illegal. The
first respondent is cited
nomino
officio
as the
Minister responsible for the Department of Home Affairs. The second
respondent is also cited
nomino
officio
as the head of
the office of the local Department of Home Affairs in Gqeberha in
which this matter was attended to by various officials.
For
convenience, at various times in this judgment reference to the
respondents shall also mean the officials who attended to the
applicants, depending on the context.
The
facts.
[2]
At some point after the birth of the child the applicants attempted
to register the second applicant as the father of the child
at the
Department of Home Affairs. However, the respondents refused to make
the necessary entries in the records of the Department
of Home
Affairs to reflect the fact that the second applicant is the
biological father of the child and to issue to them an unabridged
birth certificate of the child. The reason given for such refusal was
that the second applicant was no longer legally in the country.
Furthermore, as he was not a South African citizen, the results of a
paternity test were required to prove that he is in fact the
biological father of the minor child. The applicants further allege
that they were told that a court order declaring the second
applicant
as the father of the child would be required in addition to the proof
of paternity, which also made these proceedings
necessary.
Section 11
of the
Births and Deaths Registration Act 51 of 1992
as amended (the
Registration Act)
[1]
provides
for the amendment of the birth registration details of a child in
circumstances where a father wishes to acknowledge himself
as the
father of a child born out of wedlock subject to the submission of
conclusive proof of paternity.
[3] The applicants
launched these proceedings apparently following the guidance of the
respondents. The respondents opposed the
application on the basis of
the second applicant’s illegal presence in the country.
However, at the eleventh hour, the respondents
filed their main heads
of argument and attached thereto a draft order containing some
indication on the basis of which they wanted
the matter settled. On
the day of the hearing the respondents made a 180 degree turn
conceding essentially all the relief sought
by the applicants. This
concession was made not even at the door step of the court but right
inside the court during the hearing
of the matter. Despite that full
concession on the main relief, applicants’ counsel persisted
with a constitutional challenge
on Regulation 12(2)(c) raised
pertinently in the papers. I deal with the details of the
constitutional challenge and its gravamen
later in this judgment.
The issues.
[4] It was submitted on
behalf of the applicants that even though the matter has largely been
settled, albeit, belatedly, it was
not just necessary for the
constitutional issue pertinently raised by the applicants in the
papers to be determined but also very
important as it was a matter of
some significant general public interest. I then directed that
supplementary heads should be filed
dealing specifically with the
issues pertaining to the constitutional challenge. These are whether
this Court should still pronounce
on the constitutionality of
Regulation 12(2)(c) of the Registration Act despite the respondents
having conceded the main relief
sought by the applicants. If the
answer is in the affirmative, the merits of the constitutional
challenge will have to be determined.
If not, that will be the end of
that issue. The second issue was whether the court should exercise
its discretion and award costs
against the respondents on a punitive
scale.
The parties’
contentions.
[5] The central theme of
the respondents’ argument is that their concession on the main
relief brought to an end the legal
basis for this Court to consider
the papers and pronounce or even comment on the constitutionality of
Regulation 12(2)(c). A pronouncement
on the constitutionality of any
legislation including regulations is a very serious matter. It may
have serious implications for
the separation of powers doctrine
because of the implicated issues of ripeness and mootness. Therefore,
once the jurisdictional
factors for such a pronouncement are no
longer in existence, with the matter having been fully disposed of in
the sense that a
full concession was made on the relief sought, so
contended the respondents, it would offend the doctrine of separation
of powers
for the court to make a pronouncement on the constitutional
issue raised in the circumstances.
[6]
There have indeed been a number of judicial pronouncements on the
implicated principles all the way to the Constitutional Court
over
the course of time even though on varying factual circumstances. For
example, in
Aurecon
[2]
the
court said:
“
Given
that this matter is disposed of on the basis that the City was out of
time and failed to make out a proper case for condonation
in terms of
s 9 of PAJA, it is not necessary to venture into the arguable point
of law raised, namely the prior involvement of
a prospective
tenderer. Although the applicant and CESA implored this court to
pronounce on the proper meaning of ‘involved
with’ as
contained in 27(4) of the SCM Regulations and clause 95 of the SCMP,
the general principle as set out by this court
in
National
Coalition
is
that this court does not pronounce on issues which are moot (which
essentially would equate to providing an advisory opinion).”
[7] In their
supplementary heads of argument the respondents contend that the
court should eschew making any determination on the
constitutional
challenge of the Regulation. The respondents made two submissions in
the main. The first one is that of mootness
and the second one is the
issue of ripeness. The applicants have, in their heads of argument,
dealt with these issues under the
rubric of justiciability.
Justiciability in this sense is, by and large, part of the court’s
application and observance of
the doctrine of separation of powers
raised by the respondents.
[8]
Not so long ago the Constitutional Court explained the approach to
these interlocking principles and emphasized the courts’
obligation to exercise restraint where necessary without shirking
their responsibility to intervene in deserving cases. In
Mwelase
[3]
,
in the
words of Cameron J, in the context of a consideration of the need for
the judicial arm of the state to provide an effective
relief, the
court expressed itself as follows:
“
In
cases that cry out for effective relief, tagging a function as
administrative or executive, in contradistinction to judicial,
though
always important, need not always be decisive. For it is crises in
governmental delivery, and not any judicial wish to exercise
power,
that has required the courts to explore the limits of separation of
powers jurisprudence. When egregious infringements have
occurred, the
courts have had little choice in their duty to provide effective
relief. That was so in
Black
Sash 1
,
and it is the case here. In both, the most vulnerable and most
marginalised have suffered from the inefficiency of governmental
delivery.”
[9] The respondents’
contention on Regulation 12 (2) (c), as I understand it, is simply
this. Because during the hearing of
this application they conceded
that the Regulation was inapplicable, the issue of the constitutional
challenge was therefore not
ripe for adjudication. The respondents do
not explain and have not filed any affidavit to explain their earlier
stance: before
the application was launched; after the papers were
filed and when they filed a rather comprehensive answering affidavit
insisting
that the Regulation made it impossible for them to enter
the details of the father in the registration records of the child.
They
just, literally out of the blue, attached to their very late
heads of argument, a draft order containing what appeared to be a
half-hearted caving in, only to make a full concession on the main
relief during the hearing. They had, throughout, been contending
vociferously that this Regulation prevented them from registering the
second applicant as the father of the minor child on the
basis of his
illegal status in the country.
[10] One would have
thought that this sudden change of tack and their preparedness to now
enter the child’s father’s
details called for an
explanation. This is especially the case because it goes against
everything the respondents, under oath in
their answering affidavit,
said to this Court. With that explanation not having been given, it
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. This,
in circumstances in which as the applicants
submitted, the insistence on compliance with the Regulation caused
considerable distress
to them and which, it was argued, continues to
bedevil those children born in similar circumstances as the child in
this matter.
[11]
The respondents cannot plead ignorance about which Regulation or
subregulation is applicable and in which circumstances. The
Regulations are theirs and theirs alone and the first respondent’s
predecessor must be presumed to have known what he intended
when he
issued them and the first respondent, likewise when he enforces them.
I find the sentiments expressed by Cameron J in
Kirkland
[4]
in the context of a PAJA review apposite. He expressed himself as
follows:
“…
PAJA
requires that the government respondents should have applied to set
aside the approval, by way of formal counter-application.
They must
do the same even if PAJA does not apply. To demand this of government
is not to stymie it by forcing upon it a senseless
formality. It is
to insist on due process, from which there is no reason to exempt
government. On the contrary, there is a higher
duty on the state to
respect the law, to fulfil procedural requirements and to thread
respectfully when dealing with rights. Government
is not an indigent
or bewildered litigant, adrift on a sea of litigious uncertainty; to
whom courts must extend a procedure-circumventing
lifeline. It is the
Constitution’s primary agent. It must do right, and it must do
it properly.”
[12] The constitutional
rights of minor children are specifically provided for in the
Children’s Act 38 of 2005. Most relevant
for the purposes of
this discussion is section 6 (2) thereof which provides as follows:
“
(2)
All proceedings, actions or decisions in a matter concerning a child
must:
(a)
Respect, protect, promote and fulfil the child’s
rights set out in the Bill of Rights, the best interests of the child
standard
set out in the Bill of Rights, the best interests of the
child standard set out in section 7 and the rights and principles set
out in this Act, subject to any lawful limitation;
(b)
Respect the child’s inherent dignity;
(c)
Treat the child fairly and equitably;
(d)
Protect the child from unfair discrimination on
any ground including the ground of health status or disability of the
child or a
family member of the child.”
[13] Axiomatically, some
of the rights enacted in some detail in the Children’s Act have
been taken directly from the Constitution.
The Legislature, in
passing the Children’s Act with such a huge amount of detail
and attention concerning the rights of minor
children, sought to
leave nothing to chance in ensuring that children’s rights are
always respected, protected, promoted
and fulfilled. This it did by
passing a comprehensive piece of legislation dedicated to ensuring
that the interests of a minor
child will, without exception, be
always considered as paramount in any situation where a child is
affected or is concerned.
[14] To the extent that
the respondents contend, as they do in their supplementary heads of
argument, that they have agreed that
the child concerned could have
the details of his father entered into the records of the department
̶ despite the fact
that his father is illegally in the country,
the issue of the constitutionality of the Regulation is not ripe for
adjudication
and is in fact moot, I disagree. I disagree for a number
of reasons. First, the issue became ripe when the respondents joined
issue
contending very strongly that this child could not have the
details of his father entered in his birth certificate only because
his father was illegally in the country. And Regulation 12(2)(c) did
not allow them to enter into the registration details of the
child,
his father’s details. On these facts nothing has changed. The
illegal status of the child’s father has not changed,
the very
issue at the core of their refusal to amend the birth registration
details of the child.
[15] Second, the
respondents not only maintained this stance on numerous occasions
that the applicants visited their offices but
also filed a notice to
oppose the application when the applicants instituted these
proceedings. The respondents further filed a
comprehensive answering
affidavit contending that Regulation 12(2)(c) was applicable and
prevented them from making the necessary
amendments. Even in the main
heads of argument the respondents never conceded that Regulation
12(2)(c) was in fact unconstitutional.
They merely conceded that the
applicable Regulation was Regulation 14 and not Regulation 12. It is
not without significance that
it is the respondents themselves that
raised Regulation 12(2)(c) as the reason for their refusal to come to
the assistance of the
minor child, not the applicants. Therefore, the
question of the constitutionality of Regulation 12 was not conceded
and even in
the supplementary heads of argument no such concession
has been made. I therefore do not see how this Court entertaining the
matter
of the constitutionality of Regulation 12(2)(c) can be said to
be not ripe or to be moot.
[16] The argument seems
to be that because the respondents have changed their minds about the
applicability of Regulation 12(2)(c)
which, ironically, was raised by
them, the issue is not ripe. Therefore, so goes the argument, as I
understand it, as they have
given the applicants the relief they
sought all along, the matter should die a natural death and the court
should not pronounce
on the issue. That, in my view, cannot be so. It
cannot be so amongst many other reasons also because as can be
gleaned from the
respondents’ answering affidavit, every day in
all the 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 they are fathers who happen to
be illegal
foreigners. The question that must follow logically is
whether the respondents’ contention on ripeness or mootness in
this
matter is sustainable. I fail to see how the constitutional
challenge can be said to be moot or not ripe, absent a concession on
the unconstitutionality of the Regulation and an intention by the
respondents to immediately suspend the Regulation until it is
otherwise amended. There is not even an explanation for their change
of heart. Rights of citizens cannot, in my view, be subject
to the
whims or attitudes of the attending officials in government offices.
It cannot be gainsaid that courts must act when rights
of citizens,
especially the rights of children are allegedly being undermined or
somehow trampled upon.
[17]
It is indeed so that the child concerned in these proceedings should,
by now, have the details of his father entered into his
birth records
because of the respondents’ concession and the court order that
was consequently issued in that regard. That
is, assuming that the
respondents have timeously complied with the said court order.
However, the court cannot ignore the fact
that there may be literally
thousands of other children who are treated no differently from this
child at the respondents’
offices country wide even as we
speak. Should this Court in such circumstances not investigate and
pronounce on the constitutionality
of the Regulation which is at the
core of how this child’s rights to dignity were allegedly
trampled upon? I do not think
so. I am fortified in this approach by
the sentiments expressed by Yacoob J in
Lawyers
for Human Rights
[5]
in
which, writing for the majority, he said:
“
The
issue is always whether a person or organisation acts genuinely in
the public interests. A distinction must, however, be made
between
the subjective position of the person or organisation claiming to act
in the public interest on the one hand, and whether
it is,
objectively speaking, in the public interest for the particular
proceedings to be brought. It is ordinarily not in the public
interest for proceedings to be brought in the abstract. But this is
not an invariable principle. There may be circumstances in
which it
will be in the public interest to bring proceedings even if there is
no live case. The factors set out by O’Regan
J do help to
determine this question. The list of relevant factors is not closed.
I would add that the degree of vulnerability
of the people affected,
the nature of the rights said to be infringed, as well as the
consequence of the infringement of the rights
are also important
considerations in the analysis.”
[18] The respondents made
a half-hearted concession at the time their main heads of argument
were filed, which was very late and
not in compliance with the rules.
They even attached to their heads of argument a draft order in terms
of which they wanted the
matter disposed off on the basis that this
Regulation was not applicable in this matter. However, the fact of
the matter is that
even before the proceedings were instituted, it
was the position of the respondents that this Regulation was in fact
applicable.
Even after the application was launched, the respondents
decided to oppose the application insisting that the Regulation was
applicable
and ought to be complied with. They went on to file a
comprehensive answering affidavit in which they contended very
strongly that
it was applicable and must be complied with. Therefore,
these proceedings became necessary also because of the respondents’
stance about which they were clearly prepared to file an answering
affidavit explaining themselves. The application became fully
opposed
and was set down in the opposed motion court for no reason other than
the respondents’ insistence that the applicants
must comply
with Regulation 12(2)(c) by submitting the documents provided for
therein.
[19] I emphasize this
issue also to make the point that the Department of Home Affairs must
be assumed to have consistent rules
and policies throughout the
country and deal with people in similar circumstances as the
applicants consistent with this stance
nationwide. That said, it must
be therefore that the enquiry into the constitutionality of this
Regulation is a matter of public
importance and affects not just the
applicants and their child. Therefore, the issue of mootness raised
by the respondents is difficult
to understand. This is especially so
in this matter in which the issue has been comprehensively canvassed
in the papers and the
heads of argument. After all, the first
respondent is the National Minister of the Department of Home Affairs
and his vacillation
on such an important issue affecting the rights
of minor children is a huge cause for concern. Besides the issue of
the rights
of the affected minor children, even the parents of the
children must be attended to both professionally and competently by
government
officials and mixed signals are totally unhelpful and
utterly confusing. Their own rights to dignity and to an efficient
public
service are implicated and are not without significance.
[20] When courts do
become aware of possible unconstitutional conduct that undermines
constitutional rights, it must follow that
they are required to act
and deal with any unconstitutionality decisively where the issues
have been fully canvassed in the papers.
This is more so in a country
like ours in which the majority of the people are both poor and
uneducated which indeed is a double
whammy for such people, so to
speak. If courts do not act on allegations of unconstitutional
conduct that is properly brought to
their attention, they risk being
spectators even in cases of wanton abuse and negation of
constitutional rights. In doing so they
would be shirking their
constitutional obligations on the basis of some ill-conceived and
lofty technical argument on mootness
or ripeness, a luxury that
courts cannot afford. The consequences of this may very well be that
the Constitution itself and indeed
the rights contained therein could
become illusory and meaningless for those entitled to constitutional
protection. I am of the
firm view that for the courts to look away
when they become aware of constitutional violations, taking comfort
in some vague technical
argument on mootness is not in keeping with
the courts’ duty as the ultimate arbiters on constitutional
rights. After all,
courts are the last bastion of protection for
ordinary people when their rights are being rendered nugatory, even
if unwittingly
by government officials.
[21]
I do not understand our law to be that even when a matter may truly
be said to be moot, that is always a bar to judicial scrutiny
and
indeed pronouncement. In
Mukhandiva
[6]
,
writing
a unanimous judgment of the Constitutional Court, Moseneke DCJ aptly
expressed some of the considerations applicable to
the issues of
mootness in the following terms:
“
The
fact that a matter may be moot in relation to the parties before the
court is not an absolute bar to the court considering it.
The court
retains discretion, and in exercising that discretion it must act
according to what is required by the interests of justice.
And what
is required for the exercise of this discretion is that any order
made by the court has practical effect either on the
parties or
others. Other relevant factors that could be considered include: the
nature and extent of the practical effect the order
may have; the
importance of the issue; and the fullness of the argument advanced.
Another compelling factor could be the public
importance of an
otherwise moot issue.”
[22] It is indeed so that
this case was brought to protect the interests of the child
concerned. However, its determination would
have a wider effect and
will affect many other children in his or similar circumstances. It
will also bring clarity and certainty
to the respondents themselves
on how they should deal with children born of fathers who may be
illegal foreigners. Anecdotal evidence
suggests that there may be
millions of illegal foreigners in this country. Surely once they are
in the country and intermingle
as they surely do with local citizens,
naturally millions of children are possibly born yearly around the
country. The rights concerned
are those of the minor children.
Neither the Constitution nor the Children’s Act distinguish
between children on the basis
of citizenship of their parents as far
as I am aware when they provide for the protection of the rights of
children. I, therefore,
am of the view that this matter is
justiciable, it being neither moot nor not ripe in these
circumstances. Its determination will
not offend any of the
principles of the separation of powers and judicial restraint as
adequately explained in numerous cases by
the Constitutional Court.
Is Regulation 12(2)(c)
constitutional?
[23] The above conclusion
brings me to the actual determination of the constitutionality of
Regulation 12(2)(c). Regulation 12(2)(c)
has been a major bone of
contention in this matter from the onset and the parties remain poles
apart on its constitutionality.
It reads thus:
“
12
(1) A notice of a birth of
a child born out of wedlock shall be made by the mother
of the child
on form DHA-24 illustrated in Annexure 1A or Form DHA-24/LRB
illustrated in Annexure 1A, whichever is applicable
[7]
.
(2) The person who
acknowledges that he is the father of the child born out of wedlock
must:
(a)
enter his particulars and sign on Part D of Form DHA-24 illustrated
in Annexure 1A or on Part D of Form DHA-24/LRB illustrated
in
Annexure 1B, as the case may be, at the offices of the Department and
in the presence of an official of the Department as contemplated
in
section 10 (1) (b) of the Act,
[8]
(b) submit an affidavit
on Form DHA-288/C illustrated in Annexure 2D in which he:
(i) states his
relationship to the mother; and
(ii) acknowledges
paternity of the child; and
(c) have his fingerprints
verified online against the national population register: Provided
that in the event of the father being
a non-South African citizen, he
must submit a certified copy of his valid passport and visa or
permit, permanent resident’s,
identity document or refugee
identity document.”
[24] The applicants
contend that the effect of Regulation 12(2)(c) is that a father who
is a foreigner may not be identified as
the father of the child born
outside of the bonds of marriage on the child’s birth
certificate, unless that father is legally
in South Africa. In this
case the child concerned is a South African citizen. The applicants’
contention is that the child
is being discriminated against and
deserves protection from this Court which is the upper guardian of
all minor children. There
is a wide range of such children who may be
in difficult circumstances, not of their own making. The applicants’
heads of
argument mention as examples, children whose fathers may not
be in South Africa at the time of their birth or may not be willing
to home to this country, fathers who may be illegal foreigners as
well as those who may be undocumented foreign nationals. At the
centre of the discrimination is in the first place, the fact that the
child is born of unmarried parents and the obvious difficulties
associated with that and secondly the father being a foreigner or
worse an illegal foreigner. For these reasons the child is prejudiced
and discriminated against, irrationally on the basis of Regulation
12(2)(c) because of the circumstances of her or his birth.
[25] There cannot be any
cogent justification for such discrimination and none was advanced.
This is hardly surprising. If there
was a proper basis for the
discrimination on the basis of the illegality of this child’s
father’s presence in this
country, it escapes me why the
respondents have agreed to the amendment of the child’s
registration records. After all, the
father is still illegally in the
country. It baffles me how the respondents, especially the Minister,
can consent to this child’s
father’s details being
entered into the birth registration records of this child and still
argue that Regulation 12(2)(c)
is valid and should remain extant.
This would have the inevitable consequence of its continued
enforcement by hapless officials
of the Department, a situation of
total chaos, confusion and inconsistent application of the
Regulation. This surely should not
be countenanced.
[26] This Regulation
indeed is clearly unconstitutional and irrational in my view. For
instance, the second applicant got into this
country on a valid VISA
which later expired. On the respondents’ submissions, the event
of the expiry of a VISA must determine
if the child who is born
should be allowed to have a birth certificate with full details of
his or her father. This defies all
sense of logic. In this case the
father was not able to renew his VISA for reasons that obviously had
nothing to do with the child.
As a result, his continued stay in this
country became illegal. None of that has anything to do with the
child and his right to
have the identity of his father officially
recognised, not for the father but most importantly, for the child.
The identity of
his father is intertwined with his own identity both
of which are interlinked with his cultural identity. Therefore, the
rights
of the child to dignity was imperilled by the Regulation and
its resolute enforcement by the respondents.
[27] Some of the more
tangible effects of the respondents’ refusal to amend the birth
certificate in respect of this particular
child, it was submitted,
include the following: The father of the child is a Bulgarian citizen
and therefore according to Bulgarian
law, the child is entitled to
Bulgarian citizenship. However, the Bulgarian Embassy will not
process the registration of the child
as a Bulgarian citizen without
a full birth certificate reflecting his father’s names in it.
Bulgarian citizenship would
entitle the child to VISA free travel to
European Union member states. That would open other opportunities to
the child which all
citizens of the European Union member states
enjoy including educational opportunities, and financial assistance
to which being
a citizen of a European Union member state would
entitle him. No argument was advanced to gainsay these submissions
save for the
dismissive submission that they are irrelevant. These
are in addition to all the other rights that are enshrined in our
Constitution
which find expression in quite some detail in the
Children’s Act.
[28] The irrationality of
this Regulation becomes more pronounced if regard is had to the fact
that recognising, protecting, respecting
and fulfilling the rights of
the affected children does not in any way curtail the respondents’
ability to deal with the
fact of the illegality of the presence of
their fathers in this country. For instance the respondents are
entitled to deport the
second applicant in the normal course or deal
with him in any way they decide within the framework of the law as
they should with
any other illegal foreigner. Therefore, the entry of
his details in the child’s birth certificate does not limit any
of that.
In fact, it only prejudices the child and does so
unjustifiably and irrationally, without serving any useful purpose.
[29]
In circumstances such as these, the courts’ intervention is
required and not intervening, not only for this child but
also for
the many others who may be in the same or similar circumstances would
amount to the betrayal of the children’s rights
which are
constitutionally guaranteed. This Court must do what it is enjoined
to do to prevent the derogation of the affected children’s
rights and in doing so, it must ensure that children’s rights
are always protected and treated as paramount. In
De
Lille
[9]
the
court expressed the following apt sentiments when it comes to the
courts’ constitutional obligation to intervene where
rights of
people are adversely affected:
“
This
enquiry must crucially rest on the Constitution of the Republic of
South Africa. It is Supreme-not Parliament. It is the ultimate
source
of all lawful authority in the country. No Parliament, however bona
fide or eminent its membership, no President, however
formidable be
his reputation or scholarship and no official, however efficient or
well meaning, can make any law or perform any
act which is not
sanctioned by the Constitution. Section 2 of the Constitution
expressly provides that law or conduct inconsistent
with the
Constitution is invalid and the obligations imposed by it must be
fulfilled. It follows that any citizen adversely affected
by any
decree, order or action of any official or body, which is not
properly authorised by the Constitution is entitled to the
protection
of the courts. No Parliament, no official and no institution is
immune from judicial scrutiny in such circumstances.”
Some of the
international instruments on children’s rights.
[30] I also find it
strange that it was the first respondent, the Minister who decided to
pass a far reaching Regulation such as
this. A Regulation that
unlawfully interferes with the constitutional rights of the children
without any parliamentary consideration
and the parliamentary debate
as well as the public participation processes applicable to the
consideration of parliamentary legislation.
One would have expected
it to be Parliament that deals with the issue of children born in
these circumstances. There are some international
instruments dealing
with the rights of children which cannot be ignored by our country in
any domestic instruments that are passed.
These include Article 3 (1)
of the United Nations Convention on the Rights of the Child. It
reads:
“
In
all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration.”
[31] The United Nations
Committee on the Rights of the Child issued General Comment no 14 of
2013 in which it defined the content
of the rights contained in the
Article 3 (1) as follows:
“
The
rights of the child to have his or her best interests assessed and
taken as a primary consideration when different interests
are being
considered in order to reach a decision on the issue at stake, and
the guarantee that this right will be implemented
whenever a decision
is to be made concerning a child, a group of identified or
unidentified children or children in general.”
[32] Even coming closer
to home, I find it telling that section 11 of the Registration Act
does not discriminate between children
born of parents who are
foreigners some of whom may be illegal foreigners where such parents
are not married. In the Registration
Act all children born of
unmarried parents are treated similarly with no provision dedicated
to children who may be born of illegal
foreigners. Section 11(4) is
very clear and is worth repeating. It reads:
“
(4)
a person who wishes to acknowledge himself to be the father of a
child born out of wedlock may, in the prescribed manner, with
the
consent of the mother of the child, apply to the Director-General,
who shall amend the registration of the birth of such a
child by
recording such acknowledgement and by entering the prescribed
particulars of such person in the registration of the birth
of such
child.”
[33] This provision makes
no distinction between local and foreign fathers or those that are
legally in the country and those that
are not. The legislature, in
its wisdom, uses the words “any person”. This must be
because the focus is more on the
interests of the children and less
about who the father is or what his circumstances are. It merely
provides similarly for all
children born of unmarried parents. It
surely cannot be that a discriminatory provision can lawfully be made
in a Regulation in
circumstances where the Legislature elected not to
discriminate between children and elected to treat them the same as
children.
Conclusion.
[34] I have therefore
come to the ineluctable conclusion that the applicants must succeed
in their application on the constitutional
challenge of Regulation
12(2)(c). It follows that Regulation 12(2)(c) must be declared
unconstitutional to the extent that it imposes
discriminatory
conditions in the recordal of fathers who are unmarried and who may
be illegal foreigners in the children’s
registration of births
or who may not be present in this country or even be willing to come
to this country.
The issue of costs.
[35] The last issue that
I must deal with is the issue of the scale of costs that must be
awarded to the applicants with the respondents
having conceded costs
on a party and party scale. This is where some of the history of this
matter becomes even more relevant and
at the risk of being
repetitious, it is worth re-encapsulating. As pointed out earlier the
respondents started by delaying in filing
a simple notice to oppose.
They only did so once the matter was enrolled in the unopposed motion
court roll more than a month later
thus necessitating the matter
being removed from the roll. It has not been explained in the
answering affidavit why the respondents
delayed in filing their
notice to oppose within the time frames provided for in the rules.
The answering affidavit itself was filed
more than two months after
the issuing and service of the papers. This was also more than a
month after the filing of the notice
to oppose the application. None
of this is explained in the answering. One would have thought that
non-compliance with the rules
called for an explanation and a
condonation application, that being a trite rule of practice.
[36] The filing of the
answering affidavit happened long after the respondents had already
been furnished with the proof of paternity
of the child with the
respondents still steadfastly refusing to register the details of the
second applicant as the father of the
child in their official
records. This, despite the paternity of the child being no longer in
issue or uncertain. There were several
visits in August 2021 by the
applicants to the Department of Home Affairs in all of which they
were turned away unassisted. It
would appear that behind the
respondents’ refusal was their determination to insist on a
court order whose obtaining in this
application they eventually
opposed. It is not clear why there was even this misguided insistence
on a court order in circumstances
in which the respondents knew that
they were against it being obtained. This was clearly a
misapplication of section 11(5) which
makes reference to a court
order. This, however, is only in circumstances where the mother of
the child did not consent to the
details of the father being entered.
In this case the insistence on a court order being required is
confusing, after proof of paternity
having been furnished to them and
the mother consenting, they had no other reason for their refusal to
make the entries. If they
did have a legally justifiable reason for
the refusal, they would not have conceded to the granting of the
relief as they did on
the eleventh hour. This is especially so if
they believed that the illegal presence of the second applicant in
the country constituted
a bar to the entering of the details of the
second applicant as the father of the minor child being made in their
records.
[37] It must be
emphasized that the first respondent is responsible for the
Births
and Deaths Registration Act and
the Regulations. The respondents
should, therefore, know what they themselves require and should be
able to give proper guidance
to the people that need it for a
seamless issuing of documents in deserving cases. This would
alleviate to some extent, the notoriously
long queues that the
Department of Home Affairs is known for. For them to force people
such as the applicants to approach court
only to then admit that they
were wrong from the onset in refusing to enter the second applicant
as the child’s father is
troubling. The concession made in
court during the hearing on what they should have always known all
along is also something that
deserves an appropriate opprobrium from
this Court by way of an appropriate costs order.
The results.
[38] In the result the
following order shall issue:
1. It is declared that
Regulation 12(2)(c) of the Births and Deaths Registrations Act, 2014
is unconstitutional and therefore invalid
in so far as the child’s
unmarried father may not be in South Africa or may not be in South
Africa legally.
2. The respondents are
ordered to pay costs of this application on a scale as between
attorney and client including the costs occasioned
by the employment
of two counsel.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel for the
Applicants
: E. CROUSE SC WITH A.N. MASIZA
Instructed by
: ANNALI ERASMUS INC.
GQEBERHA
Counsel for the
Respondent:
S. J. CUBUNGU
Instructed
by
: STATE ATTORNEY
GQEBERHA
Date
heard
: 20 October 2022
Delivered
on
: 10 January 2023
[1]
Section
11 reads:
“
(1)
Any parent of a child born out of wedlock whose parents married each
other after the registration of his or her birth may,
if such child
is a minor, or such child himself or herself may, if he or she is of
age, apply in the prescribed manner to the
Director-General to amend
the registration of his or her birth as if his or her parents were
married to each other at the time
of his or her birth, and thereupon
the Director-General shall, if satisfied that the applicant is
competent to make the application,
that the alleged parents of the
child are in fact his or her parents and that they legally married
each other, amend the registration
of birth in the prescribed manner
as if such child’s parents were legally married to each other
at the time of his or her
birth.
(2) If the parents of a
child born out of wedlock marry each other before notice of his or
her birth is given, notice of such
bill shall be given and the birth
registered as if the parents were married to each other at the time
of his or her birth.
(3)
…
(4) A person who wishes
to acknowledge himself to be the father of a child born out of
wedlock, may, in the prescribed manner,
with the consent of the
mother of the child apply to the child, apply to the Director-
General, who shall amend the registration
of the birth of such child
by recording such acknowledgement and by entering the prescribed
particulars of such person in the
registration of the birth of such
child.
(4A) An amendment of the
particulars of a person who has acknowledged himself as a father of
a child as contemplated in subsection
(4) and section 10(1)(b) of
the Act shall be supported by the prescribed conclusive proof of
that person being the father of
the child.
(5) Where the mother of
a child has not given her consent to the amendment of the
registration of the birth of her child in terms
of subsection (4)
the father of such a child shall apply to the High Court of
competent jurisdiction for a declaratory order
which confirms his or
her paternity of the child and dispenses with the requirement of
consent of the mother contemplated in
subsection (4).
(6) When the court
considers the application contemplated in subsection (5) the
provisions of section 26 (b) of the Children’s
Act shall
apply.
[2]
City
of Cape Town v Aurecon SA (PTY) Ltd
2017 (4) SA 223
(CC) at 214 para
54.
[3]
Mwelase
and Others v Director-General: Department of Rural Development and
Land Reform and Another
2019 (6) SA 597
(CC) at 622 para 48.
[4]
MEC
for Health, Province of the Eastern Cape NO and Another v Kirkland
Investments (Pty) LTD
2014 (5) BCLR 547
(CC);
2014 (3) SA 481
(CC)
para 82
[5]
Lawyers
for Human Rights v Minister of Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC) at
136 para 18.
[6]
Director-General:
Department of Home Affairs and Another v Mukhandiva
2014 (3) BCLR
306
(CC) para 40.
[7]
Regulation
12(1) was declared unconstitutional in Naki v Director-General of
Home Affairs and Another
[2018] 3 All SA 802
(ECG). It is
reflected herein for completeness and ease of reading.
[8]
Section
10 has since been declared unconstitutional by the Constitutional
Court in Centre for Child Law v Director-General: Department
of Home
Affairs and Others 2022 (2) SA 131 (CC).
[9]
Speaker
of the National Assembly v De Lille
[1999] All SA 241
(A) at para
14.