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[2020] ZAGPPHC 19
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Govender v Director - General General of the Department of Home Affairs and Others (24613/2019) [2020] ZAGPPHC 19 (25 February 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISON,
PRETORIA
CASE NO: 24613/2019
In
the matter between:
LAVANI
GOVENDER
Applicant
and
DIRECTOR
–GENERAL OF THE DEPARTMENT
OF
HOME
AFFAIRS
First Respondent
MINISTER
OF THE DEPARTMENT OF
HOME
AFFAIRS
Second Respondent
YASHEEL
MAHARAJ
Third Respondent
JUDGMENT
SARDIWALLA
J:
Introduction
[1]
The proceedings before
this Court is a review application brought in terms of PAJA
to set
aside the decision of the first respondent to reject an application
made by the applicant in terms of section 25 (2) of
the Births and
Death Registration Act 51 of 1992 (“the Act”).
[2]
On or about 9 March 2018 the
applicant completed the Notice of Birth form to register her
son
Keshaan, born on 15 February 2018. At the time the applicant and the
third respondent were “married” according
to hindu rites
and customises, which marriage was never formally legally registered.
On the Notice of Birth form the applicant
had indicated Keshaan’s
surname to be “Govender”. However, the applicant alleges
that without her knowledge and
consent, the third respondent
unilaterally altered the document and crossed out the surname
“Govender” and inserted
the surname “Maharaj”
in the remaining space provided. The alteration was signed by the
third respondent only.
[3]
In April 2018 the applicant
received Keshaan’s birth certificate which recorded his
surname
as “Maharaj” and not “Govender”. The
applicant thereafter made an application in terms of
section 25(2) of
the Birth and Death Registration Act to have Keshaan’s name
changed to “Govender”. On 3 and
4 December 2018
respectively, the applicant received responses from the first
respondent rejecting her application. The reasons
provided are as
follows:
“
Afternoon
Please note that according to our
records held at this department, the child was registered with the
Maharaj surname. There is a
scratch off of the surname Govender which
shows that it was the initial one however it was cancelled and the
surname Maharaj was
put on the record.
We consider that to be legal hence
there is initials to show that the person acknowledged the
corrections, I think what I just explained
is what you are also in
possession of.
…
..
Morning
I have never seen a record with two
signatures or initials on the corrections the reason might be that
all records are not filled
in by two people, the two individuals only
attach their signatures on the acknowledgement part. (consents)
However, let’s not forget the
fact that the parents were religiously married.”
[4]
It is that decision which the
applicant in these proceedings seeks to have reviewed and
set aside.
The applicant seeks an order that the matter be remitted to the first
respondent for reconsideration
de novo
alternatively, that
Keshaan’s surname is replaced and the first respondent be
directed to alter the surname to record it
as Govender.
Grounds
of review
[5]
The applicants’ grounds of
review are that:
5.1 the decision was
materially influenced by an error of law as contemplated in section
6(2) (d) of PAJA;
5.2 the decision was
taken because irrelevant considerations were taken into account and
relevant considerations were ignored as
contemplated in section
6(2)(e)(iii) of PAJA;
5.3 the decision was
taken arbitrarily and capriciously as contemplated in section
6(2)(e)(vi) of PAJA;
5.4 the decision was not
rationally connected to the information placed before the first
respondent as contemplated in section 6(2)(f)(ii)(cc)
of PAJA;
The
decision is otherwise unconstitutional or unlawful as contemplated
in section 6(2)(i) of PAJA.
Applicant’s
submissions in support of the relief
[6]
The basis for requiring the relief relating to the exclusion of the
third respondent’s particulars
in the unabridged birth
certificate and the change to Keshaan’s surname is the
following
:
(a) the “marriage” of the parties
is not legally recognised by the Act and therefore the provisions
of
section 10 of the Act applies in so far as the registration is
concerned;
(b) In addition, section 10 of the Act only
permits that the child be registered under the name of the
mother or
that a joint request by the parties that the child be registered
under the surname of the father;
(c) That the applicant has not consented to
the alteration on the notice of Birth that the requirement
for joint
request has not been met;
(d) According to the first respondent, the
third respondent’s actions are fraudulent in so far as
the
correspondences between the applicant’s attorney and the
department official Tsietsi Sebelemetjia;
(e)
Despite an exchange of numerous correspondence with the first
respondent, relating to the surname change
and the insertion of the
third respondent’s surname in the unabridged birth certificate,
the first respondent has refused
to co-operate and assist in ensuring
the changes are made.
(f)
To corroborate her submissions, the applicant relies on exchanges of
correspondence annexed to
the application papers.
The
respondent’s opposition
[7]
The stance of the third respondent is that the applicant has failed
to demonstrate that she has exhausted
any internal remedy and or has
failed to follow the proper procedure for judicial review in terms of
the Act. That one cannot be
afforded redress through Rule 53
applications and the principal of legality in order to obtain
declaratory relief as these applications
to not apply to matters
involving PAJA.
[8]
If one were to impose the applicant’s surname to the minor
child that it would be in contravention
of section 25 of the Act
which requires the written consent of the biological father, which
consent he withholds. Further that
the parties had agreed that
Keshaan would carry the surname “Maharaj”.
Issue
for determination
[9]
I am required to decide whether it is in the best interests of
Keshaan for his surname
to be altered to his mother’s surname
or to remit the matter back to the first respondent for
reconsideration.
Applicable
legal principles and analysis
[10]
Section 28(2) of the Constitution of the Republic of South Africa,
1996 reads as follows:
‘
A child’s best
interests are of paramount importance in every matter concerning the
child.’
[11]
The principle of ‘
best interests of the child’
has
pervaded both statutory provisions pertaining to children and our
case law and is the starting and end point, in my view, when
dealing
with matters pertaining to children. The enactment of the Children’s
Act 38 of 2005 (‘the Children’s
Act’) places
significant emphasis on the ‘best interests of the child’
with s 9 of the Children’s Act specifically
reading as follows:
‘
In all matters concerning
the care, protection and well-being of a child the standard that the
child's best interest is of paramount
importance, must be applied.’
[12]
The court as upper guardian of minor children has extremely wide
powers to determine what is
in the best interests of minor children.
This is having regard to the evidence presented and/or the
submissions advanced by the
respective parties who ‘appear’
to be acting in the best interest of the child.
[13]
Our law makes it clear that the interest of children is of paramount
concern in all matters relating
to them and often takes preference
over the interests of the parents and the views expressed by parents
and guardians.
[14]
The preamble to the Children’s Act recognises that children
‘should grow up in a
family environment and in an atmosphere of
happiness, love and understanding’.
[15]
Section 2 deals with the objects of the Children’s Act and
reads as follows at
(i)
:
‘
. . .generally, to promote
the protection, development and well-being of children.’
[16]
Chapter 2 of the Children’s Act, specifically s 6(2)-(5)
records the following:
‘
(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 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 on the
grounds of the health status or disability of the child
or a family
member of the child;
(e)
recognise a child's need for
development and to engage in play and other recreational activities
appropriate to the child's age;
and
(f)
recognise a child's disability and
create an enabling environment to respond to the special needs that
the child has.
(3) If it is in the best interests
of the child, the child's family must be given the opportunity to
express their views in any
matter concerning the child.
(4) In any matter concerning a
child-
(a)
an
approach which is conducive to conciliation and problem-solving
should be followed and a confrontational approach should be avoided
;
(my emphasis)……..
(5)
A child, having regard to his or her age, maturity and stage of
development, and a person who has parental responsibilities
and
rights in respect of that child, where appropriate, must be informed
of any action or decision taken in a matter concerning
the child
which significantly affects the child.’
[17]
Section 7 of the Children’s Act sets out the factors to be
considered when applying the
best interests of the child standard and
the relevant portions thereof read as follows:
‘
(1) Whenever a provision of
this Act requires the best interests of the child standard to be
applied, the following factors must
be taken into consideration where
relevant, namely-
(a)
the
nature of the personal relationship between-
(i) the child and the parents, or
any specific parent; and
(ii) the child and any other
care-giver or person relevant in those circumstances;
(b)
the
attitude of the parents, or any specific parent, towards-
(i) the child; and
(ii) the exercise of parental
responsibilities and rights in respect of the child;
(c)
the
capacity of the parents, or any specific parent, or of any other
care-giver or person, to provide for the needs of the child,
including emotional and intellectual needs;
……………
..
……
(f)
the
need for the child-
(i) to remain in the care of his or
her parent, family and extended family; and
(ii) to maintain a connection with
his or her family, extended family, culture or tradition;
(g)
the
child's-
(i) age, maturity and stage of
development;
(ii) gender;
background;
and
any
other relevant characteristics of the child;
(h)
the child's physical and emotional
security and his or her intellectual, emotional, social and cultural
development;
…………………………
.
(k)
the need for a child to be brought
up within a stable family environment and, where this is not
possible, in an environment resembling
as closely as possible a
caring family environment. . . .’
[18]
Section 10 of the Birth and Death Registrations
Act
[1]
provides
as follows:
“
(1)
Notice of birth of a child born out of wedlock shall be given
(a)
under the surname of the mother; or
(b) at the joint request of
the mother and of the person who in the presence of the person to
whom the notice of birth was given
acknowledges himself in writing to
be the father of the child and enters the prescribed particulars
regarding himself upon the
notice of birth, under the surname of the
person who has so acknowledged.
(2) Notwithstanding the provisions
of subsection (1), the notice of birth may be given under the surname
of the mother if the person
mentioned in subsection (1)(b), with the
consent of the mother, acknowledges himself in writing to be the
father of the child and
enters particulars regarding himself upon the
notice of birth.”
[19]
Section 25(1)(c) of the Births and Deaths Act provides:
“
When
the birth of any minor born out of wedlock has been registered under
the surname of his or her natural father and the natural
father
consents thereto in writing, unless a competent court grants
exemption from such consent, his or her mother or his or her
guardian, as the case may be, may apply to the Director-General for
the alteration of his or her surname to the surname of his
or her
mother, or the surname which his or her mother has resumed, or the
surname of his or her guardian, as the case may be, and
the
Director-General may alter the registration of birth of that minor
accordingly in the prescribed manner: Provided that the
man who
married the mother of a minor mentioned in paragraph (a) or (b),
shall grant written consent to the alteration.”
[20]
Section 25(1A) of the same Act provides:
“
Notwithstanding
subscription 1(b) and (c), the natural father’s written consent
is not required where the mother has sole
guardianship of the child
concerned.”
[21]
In my view a proper interpretation of section
25(1)(c) read with section 25(1A), is that the natural mother
has the
power to change the minor child’s surname if the minor child
was born out of wedlock and the natural mother is the
sole guardian
of the minor child.
[22] The
Children’s Act 38 of 2005 and in particular section 19
provides:
“
1.
The
biological mother of a child, whether married or unmarried, has full
parental responsibilities and rights in respect of the
child;
2.
if
–
(a)
the
biological mother of a child is an unmarried child who does not have
guardianship in respect of the child; and
(b)
the
biological father of the child does not have guardianship in respect
of the child,
the
guardian of the child’s biological mother is also the guardian
of the child.”
[23]
There are a number of cases to which I have been referred,
[2]
which hold a different view and the High Court has directed the
Director General to alter the name of a minor child in circumstances
where the mother has opposed the granting of such relief and where
the consent of both parents of the child is absent.
[3]
[24]
In my view the wording in s 25(2) allows a parent to apply to the
Director General for the change
of surname of a minor child in
circumstances where ‘good and sufficient reason’ is given
for the alteration to the
surname. It does appear that the Director
General has the discretion in the event of him/her being satisfied
that good and sufficient
reason exists for the alteration of the
surname then such an application can be considered on such basis.
This would be in circumstances
where both parties consent and agree
to same. In circumstances like the present, where they do not, an
approach must be made to
the court to dispense with consent of the
non-consenting parent.
[25]
I think it is important at this stage for me to
mention that this Court is not tasked with determining whether
or not
the parties’ marriage consisted of a “marriage” as
defined in the Act but rather whether or not the first
respondent
acted lawfully in rejecting the application made in terms of section
25(2) by the applicant. In any event the third
respondent has not
disputed that the “marriage” between the parties was not
legally registered and in fact he confirms
that they were married
under hindu rites
[4]
, I am
therefore satisfied that section 10 of the Act applies in so far as
the minor child is concerned.
[26]
Whilst the third respondent contends that there
was an agreement that Keshaan would carry his surname, he
has not
provided any evidence before this Court nor a reasonable version that
on a balance of probabilities this Court could accept.
It
remains undisputed that the primary residence of the minor child
since birth has been with the applicant. It follows therefore
that
according to section 25 (1A) as at the date when the third respondent
altered the minor child’s surname, the applicant
was the sole
guardian of the minor child born out of wedlock in terms of section
10.
[27]
Upon interpretation of section 10 it is clear that
a minor child born out of wedlock automatically assumes
the surname
of the mother unless there is a joint request. In specifically
looking at the wording of section 25(1)(b) in order
for this
requirement to be fulfilled the father of the minor child born out of
wedlock must be in the presence of the mother when
completing the
Notice of Birth form. The third respondent has not disputed that at
the time of the completion of the Notice of
Birth that he was not in
the presence of the applicant
[5]
.
It is significant to note that this section makes no mention
regarding the initials of both parties as a requirement to prove
legality and therefore the reasoning of the first respondent is
flawed. The applicant avers that she handed the Notice of Birth
form
to the third respondent’s father for the third respondent to
complete and submit to the Department of Home Affairs
[6]
.
Therefore, I am of the view that the requirement for joint request
has not been fulfilled. In the premise section 10(1)(a) and
25(1A) of
the Act applies and the applicant does not need the third
respondent’s permission to change the minor child’s
surname.
[28]
In any event section 25(1)(c) of the Act confers
powers on this Court as upper guardian to exempt the requirement
of
the father’s consent and order that the Director-General of the
Department of Home Affairs alter the name of the minor
child to the
surname of the mother, where the father of the minor child refuses
consent. Therefore, I am of the view that it is
unnecessary for the
matter to be remitted to the first respondent for reconsideration. I
am satisfied that the applicant as the
sole guardian of the minor
child had no knowledge of and did not consent to the alteration and
therefore the surname of the minor
child must be altered to that of
the applicant.
[29]
I accordingly make the following order:
1.
The first respondent is directed to alter its records to record the
surname of the minor child Keshaan, as Govender.
2.
There is no order as to costs
.
C
M SARDIWALLA
JUDGE
OF THE HIGH COURT
Appearances
:
Date
of hearing
: 21 OCTOBER
2019
Date
of judgment
: 25
FEBRUARY 2020
For
the Applicant:
ADV R M COURTENAY
Instructed
by:
Nance-Kivell Attorneys
For
the Third Respondents: ADV K
POTGIETER
Instructed
by:
David Mey & Partners Attorneys
[1]
Act 51 of 1992
[2]
D v D & 1 Other,
(case number 1751/2014) Judgment of
Tsatsi AJ in the Bloemfontein High Court delivered on 11 September
2014,
EC Monchusi v G Taaibosch
,
(case number 1418/2013) Judgment of Sesele AJ in the Bloemfontein
High Court delivered on 14 November 2013,
GM Mulomba v K Idisi,
(case number 05881/2014) Judgment of Fisher AJ in the Johannesburg
High Court, delivered on 6 October 2014
[3]
EM v GT
[2015] JOL 32692
(FB);
Damon v Dasram
2014 JDR
2708 (FB).
[4]
Answering Affidavit, Indexed and paginated bundle
page 45, para 21
[5]
Answering Affidavit, Indexed and paginated bundle
page 45, para 23
[6]
Founding Affidavit, Indexed and paginated bundle
page 8, para 13