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[2022] ZAECELLC 41
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N.N and Another v Minister of Home Affairs and Another (EL1252/2020) [2022] ZAECELLC 41 (20 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, EAST LONDON)
Case
No: EL1252/2020
In
the matter between:
N[…]
N[…]
First
Applicant
G[…]
O[…] G[…] N[…]
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[…] E[…] N[…]
(
N[…]
) born 25 April 2014 and
M[…] G[…]
N[…]
(
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[...] N[...], 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[...] N[...]; 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[...]
. 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 1[…], issued to N[...] E[...] N[...]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[...] E[...]
N[...] 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[...]
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[...]’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[...]
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[...]’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[...]
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[...]’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[...]
. 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[...]
to be allocated an identity number. The
letter is addressed to applicants’ attorneys and is entitled
RE: CONFIRMATION OF
NON-SA CITIZENSHIP, M[...] G[...] N[...], 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[...] N[...] 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[...] N[...], to make
application at the Zimbabwean Embassy in South Africa to register
the
birth of the child.
(c)
Upon
receipt of Ms. M[...] G[...] N[...]’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[...]
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[...]
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[...]
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[...]
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[...]
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[...]
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[...]
.
[25]
I have no difficulty in finding that the identity
number issued to
N[...]
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[...]
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[...]
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 1[…] issued to N[...] E[...] N[...]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:
05/05/22
Date
Reserved:
05/05/22
Date
Delivered:
09/20/22
[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.