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[2022] ZAECELLC 26
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N.N and Another v Minister of Home Affairs and Another (EL1252/2020) [2022] ZAECELLC 26 (20 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, EAST LONDON)
Case
No: EL1252/2020
In
the matter between:
N[....]1
N[....]2
First Applicant
G[....]1
O[....] G[....]2
N[....]2
Second Applicant
And
MINISTER
OF HOME
AFFAIRS
First Respondent
THE
DIRECTOR-GENERAL, HOME AFFAIRS
Second Respondent
JUDGMENT
BESHE
J:
[1]
The applicants in this matter
are wife and husband and parents to two children,
N[....]3 E[....]
N[....]2
(
N[....]3
) born 25 April 2014 and
M[....]
G[....]3 N[....]2
(
M[....]
) born 11 January 2018. Both
children were born within the borders of South Africa. The applicants
are Zimbabwean citizens. They
currently reside in Beacon Bay, East
London. The application concerns
M[....]
. They are seeking an
order in the following terms:
“
1.
Directing the Applicants’ exemption, in the interests of
justice, from first exhausting such internal remedies as may exist,
as provided for in terms of
section 7(2)(c)
of the
Promotion of
Administrative Justice Act 3 of 2000
.
2.
That the Second Respondents’ refusal and/or failure and/or
omission to register the birth of the Applicants’ child,
M[....] G[....]3 N[....]2, and issued a birth certificate thereafter
with identity numbers be:
2.1 declared wrongful,
and
2.3 reviewed and set
aside.
3.
Directing the Second Respondent to register the birth of M[....]
G[....]3 N[....]2; allocate unique identity numbers to her and
issue
an unabridged birth certificate that reflects the correct details of
her parents, being the Applicants, in terms of
Regulation 7
(2) (a)
of the Regulations on the Registration of Births and Deaths, 2014.
4.
Directing the Respondents to pay costs of this application. Such
costs to be on a scale as between attorney and own client.”
[2]
The founding affidavit is
deposed to by first applicant who states that they relocated
to South
Africa in March 2003. She attained permanent residence status in
October 2012. She was issued with a South African Identity
Document
as a non-citizen in 2014.
[3]
Not only is the application
opposed by the respondents, they are also making a
counter-application.
The counter-application relates to a birth
certificate that was issued to
N[....]3
. Respondents seek an
order in the following terms in their counter-application:
“
(a)
the respondent’s non-compliance with the normal rules of the
above honourable court relating to form, service and timelines
required in terms of
rule 53
of the Uniform Court rules be condoned
and the First and Second Respondents be granted leave to bring this
application as counter
application to the main application.
(b)
a declaratory order that identity number [....], issued to N[....]3
E[....] N[....]2 on 7 June 2014 was issued unlawfully and
against the
provisions of the Births and Deaths Registrations Act, read together
with the Citizenship Act and the Identification
Act.
(c)
the issuing of the abovementioned identity numbers thereof is
reviewed and set aside.
(d)
Applicants are ordered to, within 90 days from the date of this
order, to register birth of their minor child N[....]3 E[....]
N[....]2 in their country of citizenship and thereafter should they
wish, make and application for her own status in the Republic.
(e)
the Applicants shall pay the costs of this application only in the
event they oppose this application. Otherwise the costs of
this
application shall be costs in the cause in the main application.
(f)
further and/or alternative relief as it deems appropriate.”
Contentions
by the applicants
[4]
Their first born child
N[....]3
was issued with a birth certificate with a unique identity number by
the second respondent in 2014. After
M[....]’s
birth in
January 2018, contrary to what obtained in
N[....]3’s
case, when they applied for
M[....]’s
birth certificate
in 2018, they were issued with one without an identity number. She
was advised that the reason for not allocating
N[....]3
with
an identity number was due to the fact that first applicant is not a
South African citizen but a permanent resident and that
N[....]3’s
birth must first be registered in applicant’s country of
origin, Zimbabwe. She avers that the conduct of respondent’s
officials in refusing to allocate an identity number to
N[....]3
is wrongful. It is in conflict with
Section3, 7
and
8 of
the
Identification Act 68 of 1997
. Further that it is
inconsistent with
Regulations 7
(2) (a) of the
Births and Deaths
Registration Act 51 of 1992
. Furthermore, that her permanent
residency status is sufficient to justify that her children should
also attain the same status
regardless of their father’s
current status.
Respondents’
opposition and counter-application
[5]
The affidavit in this regard is
deposed to by
Xholile Wittes
who describes himself as a senior
legal administrative officer attached to the Department of Home
Affairs which is headed by the
first respondent. According to
Mr
Wittes
, the basis for opposing the main application is that the
orders sought by the applicants are incompetent. Regarding the
counter-application,
Mr Wittes
avers that an act of illegality
occurred in the issuing and or processing of
N[....]3’s
birth certificate, and she was issued with an identity number
without due process being followed. The respondents are now seeking
the reviewal of their unlawful administrative action in this regard.
[6]
The respondents also assert that
the applicants have not made out a case for an exemption
in terms of
Section
7
(2) (c) of PAJA
[1]
from utilizing or exhausting the internal remedies provided for by
legislation.
Section
7
(2) (c) of PAJA
provides that “a court or tribunal may in exceptional
circumstances and on application by the person concerned, exempt such
a person from the obligation to exhaust any internal remedy if the
court or tribunal deems it in the interest of justice”.
[7]
In this regard, applicants
assert that internal remedies were not explored because the
respondents have shown no interest in issuing a birth certificate
with an identity number for
M[....]
. This amounts to
exceptional circumstances which in the interest of justice justify
the exemption sought. Further that granting
the relief sought in this
application with protect the interest of the minor child.
[8]
I do not think there is merit in
the first ground raised by the applicants for asserting
that they are
deserving of an exemption as provided for in
Section
7
(2) (c) of PAJA
.
The second ground is not without merit or bereft of merit. In every
matter concerning a child, their best interest are of paramount
importance.
[2]
In my view, the
fact that the application concerns a child justifies the exemption of
the applicants from the requirement that
they first explore / exhaust
internal remedies. It is therefore, in my view, in the interest of
justice and therefore in the interest
of the minor child that they be
exempted from exhausting internal remedies.
9]
The respondents assert
that the applicants’ minor child is not entitled to a
birth
certificate with a unique identity number. In support of the
assertion, the court’s attention is drawn to the legal
framework that governs the registration of a birth. The pieces of
legislation that are said to be applicable are:
Births
and Deaths Registration Act number
51 of 1992.
Identification
Act 68 of 1997
.
In
respect of the former Act, reliance is placed on
Section 5
thereof with special emphasis on
Section 5
(3)
. It is apposite
to reproduce these provisions as I do:
“
5 Custody of
records and registration of births and deaths
(1) The Director-General
shall be the custodian of all—
(a) documents
relating to births and deaths required to be furnished under this Act
or any other law; and
(b) records of any
births and deaths preserved, prior to the commencement of this Act,
in terms of the Acts repealed by this
Act.
(2) Particulars obtained
from the documents referred to in subsection (1) (a) shall be
included in the population register and such
inclusion is the
registration of the births and deaths concerned.
(3) In the case of a
non-South African citizen who sojourns temporarily in the Republic,
particulars obtained from documents mentioned
in subsection (1)
(a) shall not be included in the population register and the
issuing of a certificate in respect of such
particulars is the
registration thereof.”
Section
9
of the Act deals with the notice of
birth.
Subsection 5
thereof provides that:
“
(5)
The person to whom notice of birth was given in terms of subsection
(1), shall furnish the person who gave that notice with
a birth
certificate, or an acknowledgement of receipt of the notice of birth
in the prescribed form, as the Director-General may
determine.
”
[10]
This, according to the respondents is what was
supposed to have happened in the case of both minor children
and did
in fact happen in respect of
N[....]3
. It is further asserted
that, based on the abovementioned provisions, it is clear that there
is a different category of birth certificates
that is issued to
non-South African citizens whose particulars do not get to be
included in the population register.
[11]
This is further bolstered by provisions of the
Identification Act
>. Once again, it will be apposite to
reproduce the applicable provisions of this Act as I proceed to do.
Section 3
provides that:
“
3
Application of Act
This
Act shall apply to all persons who are South African citizens and
persons who are lawfully and permanently resident in the
Republic.”
Section
7
provides that:
“
7
Assignment of identity numbers
(1)
The Director-General shall assign an identity number to every person
whose particulars are included in the population register
in terms of
section 8.
(2)
An identity number shall be compiled in the prescribed manner out of
figures and shall, in addition to a serial, index and control
number,
consist of a reproduction, in figure codes, of the following
particulars, and no other particulars whatsoever, of the person
to
whom it has been assigned, namely—
(a)
his or her date of birth and gender; and
(b)
whether or not he or she is a South African citizen.”
Section
8
in turn provides that:
“
8
Particulars to be included in population register
There
shall in respect of any person referred to in section 3, be included
in the population register the following relevant particulars
available to the Director-General, namely—
(a)
his or her identity number referred to in section 7;
(b)
his or her surname, full forenames, gender, date of birth and the
place or country where he or she was born;
(c)
if he or she has attained the age of 16 years, his or her ordinary
place of residence and his or her postal address;
(d)
if he or she is a South African citizen but is not a citizen by birth
or descent, the date of his or her naturalisation or registration
as
such a citizen, and, if he or she is an alien and was not born in the
Republic, the date of his or her entry into the Republic,
and the
country of which he or she is a citizen.”
[12]
It is the respondents’ assertion that the obvious
interpretation of these provisions is
that a person must have been
registered as a citizen of his or her own country. That the
department can only be able to register
a child and provide an
identity number once it is able to confirm whether the child is a
citizen of another country or not.
Mr Wittes
outlines what
practically is the administrative process the applicants ought to
have followed as being the following:
·
Give notice of birth of child in terms of
Section 9
of
the
Births and Deaths Registration Act
.
·
Upon which a birth certificate will be
issued to the child.
·
Minor children are entitled to follow their
parents’ citizenship which in this case is Zimbabwean.
·
The fact that first applicant is a
permanent resident in South Africa, does not entail that her children
are automatically grated
the status of permanent residency in South
Africa. Even though they qualify to follow their parents’
status, an application
by their parent/s after having been registered
as citizens of their country i.e. where their parent/s are citizens
is required.
Something they can do through the embassy of their
country of origin.
[13]
In a nutshell, respondents’ case is that the
applicants’ minor children not being South African
citizens and
not being persons who are lawfully and permanently residents in South
Africa, (permanent residence) they cannot be
issued with a birth
certificate with an identity number. It is only once the status of
permanent residence has been attained by
a child following an
application for same, can a child qualify to have an identity number
assigned to her.
[14]
I note that the identity document issued to first
applicant on 21 February 2014 specify that it is issued
in respect of
a non-South African citizen and records her country of birth, which
is Zimbabwe.
[15]
A letter annexed to applicants’ founding
affidavit and marked “NN9” shows that the applicants
were
apprised of what they needed to do, the steps they needed to follow
in order for
N[....]3
to be allocated an identity number. The
letter is addressed to applicants’ attorneys and is entitled
RE: CONFIRMATION OF
NON-SA CITIZENSHIP, M[....] G[....]3 N[....]2,
BORN ON 11 JANUARY 2018. The following is recorded therein:
“
1.
With reference to your correspondence dated 20
th
October 2020. Please note the following:
(a)
according to the available information, Ms.
M[....] G[....]3 N[....]2 is not a South African citizen, as at the
time of her birth,
neither of her parents was a South African
citizen. However, they are permanent residents.
(b)
it is advisable for the parents of Ms.
M[....] G[....]3 Nadlovu, to make application at the Zimbabwean
Embassy in South Africa to
register the birth of the child.
(c)
Upon receipt of Ms. M[....] G[....]3
Nadlovu’s Zimbabwean passport, her parents are encouraged to
make application at the
closes VFS Global offices for her permanent
residency.
2.
It is only after your client has been granted permanent residency, as
per status of the parents, would we then allocate the Identity
number
for permanent residents.
____________
N
QALASE
LOCAL
OFFICE MANAGER: EAST LONDON OFFICE LARGE
DATE:
2020.10.28”
[Reproduced as it is.]
Counter-application
[16]
The counter-application is based on the same
grounds as stated hereinabove for this assertion that the issuing
of
a birth certificate with a unique identity number to applicants’
minor child,
N[....]3
falls to be reviewed and set aside. On
the basis that it was issued unlawfully and against the applicable
prescripts. The respondents
seek a reviewal of the administrative
action taken in this regard in a bid to prevent an act of illegality
being perpetuated. This
only came to their attention through the main
application. The way I understand respondents’
counter-application is that
it is based on the principle of legality
and not
PAJA
[17]
Applicants’ assertion that because the review application was
not made within 180 days,
as provided for in
Section 7
of
PAJA
does not have merit. The respondents brought the application
(counter-application) once the act of illegality came to their
attention. In my view, the delay has been adequately explained and
the review was instituted within a reasonable time after becoming
aware of the “illegality”. This in my view does not non
suit the respondents from making the counter-claim.
Discussion
[18]
Respondents’ stance which is relevant to
both opposition of the main application and their counter-claim
is as
follows:
The
issuing of birth certificate with an identity number in respect of
the applicants’ first child, without first being granted
a
permanent resident permit, was erroneous. They make the point that
only permanent residents have a right to be issued with an
identity
number. Even that identity number would be different from those
allocated to South African citizens. The error was further
perpetuated by issuing
N[....]3
with an identity number whose
eleventh digit was an 0. “0” being reserved for showing
that the holder is a South African
citizen. One “1” will
be the eleventh digit in respect of non-citizen of South Africa.
[19]
This is also illustrated by the identity number
that was issued to the first applicant – the eleventh
digit
being 1. As opposed to one issued to
N[....]3
whose eleventh
digit is 0.
[20]
Applicants point out, correctly so, that the
respondents derive their power to issue or allocate identity
number
from
Section 7
of the
Identification Act
>.
Section 2
(2)
thereof prescribes how identity numbers should be compiled.
Section 7
(2) (b)
requires that the identity umber should
indicate whether the person concerned is a South African citizen or
not.
[21]
Applicants argue that based on
Regulation 7
(2)
issued in respect of the
Births and Deaths Registration Act
>,
the Director-General is enjoined to issue the parents of a child with
an identity number.
[22]
I am inclined to agree with the applicants in this
regard. It is however clear that the respondents are
required to
issue such an identity number in accordance with the citizenship of
the person concerned. In order for the respondents
to determine
whether that person is a South African citizen or not, that person’s
birth must have been registered in the
persons’ country of
origin. It is after the birth had been registered in the country of
origin that an application for permanent
residency can be processed
upon application by that person. If the person is a minor upon
application by his / her parents on the
child’s behalf.
[23]
This is also clear from the wording of
Section
3
of the
Identification Act
>. The objective of this Act amongst
others is to provide for the compilation of and maintenance of a
population register in respect
of the Republic; for the issue of
identity cards etc.
Section 3
of the Act
provides that the Act
is applicable to all persons who are South African citizens and
persons who are lawfully and permanently
residents in the Republic.
Hence respondents’ argument that
N[....]3
should apply
for permanent residence status. But, in order to facilitate that, her
birth must first be registered in her country
of origin. The country
where her parents are citizens
albeit
first applicant having
been granted permanent resident status in the Republic of South
Africa. That in itself, so argues the respondents,
does not
automatically clothe
N[....]3
with the status of permanent
residency.
[24]
The issuing of identity number must be preceded by
the granting of a permanent resident’s permit which
in turn
will require that persons be reregistered in their country of origin.
Both
Mr Nzuzo
for the applicants and
Mr Mpakane
for the
respondents also drew my attention to the
Regulations to the
Births and Deaths Registration Act
>, in particular to
Regulation
(2) (a) and (b)
. from this regulation, it is clear that the
second respondent is enjoined, upon receipt of a notice of birth, to
issue to the parents
a birth certificate with an identity number for
holders of a permanent residence permit. It is common cause that
neither
M[....]
nor
N[....]3
are holders of permanent
residence permits. My interpretation of the legislation in this
regard including the abovementioned regulation,
implies that the
child’s status must first be registered, namely, as permanent
resident, before they can be issued with an
identity number. Until
such time that a person has not been issued with permanent residency
permit (in the case of a foreign citizen)
they cannot be issued with
an identity number. This procedure was also not followed before an
identity number, indicating that
she was a South African citizen was
issued to
N[....]3
.
[25]
I have no difficulty in finding that the identity
number issued to
N[....]3
by the respondents was issued unlawfully and against the provisions
of relevant legislation. I am of the view that it was incumbent
upon
the respondents to review their own unlawful decision or action as
they seek to do in the counter-application. This is based
on the
principle of legality. In both
State
Information Technology v Gijima Holdings
[3]
and
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[4]
the Constitutional Court acknowledged that it is permissible for an
organ of state to seek a judicial review of its own administrative
action. In the
Asla
matter, the following was said at paragraphs [44] to [46]:
“
[44]
For a considerable time, it was accepted that organs of state that
seek to set aside their own decisions
were entitled, and indeed
obliged, to do so under PAJA. This inevitably involved a
consideration and application of
section 9
of PAJA with regard to any
contentions of unreasonable delay.
[45]
Following this Court’s decision in
Gijima
,
it is now settled that an organ of state seeking to review its own
decision must do so under the principle of legality and cannot
rely
on PAJA. What implications, if any, does this have for assessing the
delay.
[46]
There are four principles that answer this question. First, assessing
delay under PAJA and legality differs in two respects,
even though
both hinge on reasonableness. The first difference is the role of the
180-day bar in
section 7(1)
of PAJA.”
[26]
The reliance by the applicants on
Section
19
of the
Identification Act
[5
]
is misplaced. This section deals with circumstance where the identity
document concerned does not correctly reflect the particulars
of the
person to whom it was issued.
Section
19
provides for the correction, cancellation and replacement of identity
card, temporary identity certificate or certificate. The
matter
serving before me in respect of both of applicants’ children is
not concerned with incorrect particulars of the person
to whom the
documents were issued. But with the process followed in issuing the
identity number in respect of
N[....]3
and refusal to do so in respect of
M[....]
.
Conclusion
[27]
I am not persuaded that the applicants have made
out a case for an order directing the second respondent
to register
the birth of
N[....]3
and allocate her with unique identity
numbers. On the other hand, I am satisfied that the respondents have
made out a case for the
relief sought in the counter-application.
[28]
I do not see why the costs should not follow the
results in respect of the main application. However, as
far as the
counter-application is concerned, it will not be appropriate to order
costs against the applicants. I do not understand
it to be the case
of the respondents that it was through applicants’ design or
fault that their minor child was issued with
an identity number even
though not holding a valid permanent residency permit. The fault lies
at the doorstep of respondents’
officials.
Order
(1)
The main application is dismissed
with costs.
(2)
In respect of the
counter-application, the following order will issue:
It is declared that
the identity number being [....] issued to N[....]3 E[....] N[....]2
on 7 June 2014 was issued unlawfully.
(3)
The issuing of the abovementioned
identity number is reviewed and set aside.
(4)
There will be no costs order in
respect of the counter-application.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants :
Adv: S Nzuzo
Instructed
by
:
TSHANGANA ATTORNEYS
INC.
15
Kennington Road
Nahoon
EAST
LONDON
Ref:
VT/N17/2020
info@tshangaattorney.co.za
Tel.:
043 – 880 0028
For
the Respondents :
Adv: S Mpakane
Instructed
by
:
STATE ATTORNEYS
17
Fleet Street
Old
Spoornet Building
EAST
LONDON
Ref:
18/20-P10(Mrs Yako) NoYako@justice.gov.za
Tel.:
043 – 706 5100
Date
Heard
: 5 May 2022
Date
Reserved
:
5 May 2022
Date
Delivered
:
20 September 2022
[1]
Promotion
of Administrative Justice Act number
3 of 2002.
[2]
Section
28 (2) of the Constitution. See also Section 9 of the Children’s
Act 38 of 2005.
[3]
2018
(2) SA 23.
[4]
[2019]
ZACC 15.
[5]
Act
68 of 1997.