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[2019] ZAGPPHC 156
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GPCM v Minister of Home Affairs and Others (38909/2017) [2019] ZAGPPHC 156; 2020 (3) SA 434 (GP) (16 May 2019)
IN THE
HIGH
COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER: NO
(3)
REVISED
CASE N0:38909/2017
16/5/2019
In
the matter between:
GPCM
APPLICANT
and
MINISTER
OF HOME AFFAIRS
FIRST RESPONDENT
DIRECTOR
GENERAL:
DEPARTMENT
OF HOME AFFAIRS
SECOND RESPONDENT
DEPUTY
DIRECTOR GENERAL: DEPARTMENT
OF
HOME AFFAIRS: CIVIC AFFAIRS
THIRD RESPONDENT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
On 13 July 2017 I gave an order in the
following terms;
"1.
The forms
,
service
requirements and time periods provided for in the Uniform Rules of
Court are dispensed with and this matter
is
treated as
urgent.
2.
The Applicant is permitted to use
her initials instead of her full names on all court documents filed
that will be available to
the public.
3.
The Applicant is permitted to
file and provide the Court and Respondents with a confidential
affidavit that contains the Applicant's
full name together with an
unredacted version of the annexures that will not be made available
publicly.
4.
The Director-General's failure to
make and communicate decisions in respect of the Applicant's
application for the alteration of
the sex description/ marker on her
birth certificate in accordance with her application in terms of
section 2 of the Alteration
of Sex Description Status Act 49 of 2003
(''the Alteration Act'? is reviewed and set aside
.
5.
The Director-Genera/ must, within
three weeks of the date of this order, alter the Applicant
'
s
sex description/marker on the birth certificate/register and identity
document, reflecting her sex description/marker as female.
6.
The Respondents must issue the
Applicant
'
s
passport on an expedited basis (by 21 August 2017), provided all
other aspects of the passport application have been approved.
7.
The Respondents are directed to
pay the Applicant's costs, including costs of counsel
,
on an attorney and client scale.
"
[2]
I indicated at the time that my reasons
for the order will follow on request. What follows are the reasons
for the order.
[3]
I interpose to
indicate
that there has been a significant delay
in the delivery of these reasons. My understanding was that an
ex
tempore
judgment was delivered and a
draft order made an order of court. I
had
not been aware that the respondents who
were aggrieved at the order requested reasons for the order until it
was brought to my attention
by the Judge President in April 2019,
some two years
later.
This
is regrettable because the court was approached on an urgent basis
and a finding was made to the effect that the matter was
sufficiently
urgent, on the facts that are set out below, to warrant the urgent
attention of this court.
Urgency
[4]
The application was brought on an
urgent
basis. The applicant describes the
application as
"manifestly
urgent".
When the application was heard on
13
July 2017, the applicant was due to
travel to Thailand on 21 August 2017 for purposes of gender
reassignment surgery. Without an
identity document and a passport the
applicant would not be able
to
undertake
such a trip. The applicant's travel
itinerary
has been secured and he has managed to
secure an appointment for the operation
.
Were the reassignment surgery not to
take place, the applicant would have to
wa
i
t
more
than
a year to secure another appointment.
[5]
The Thailand based surgeon who is to
perform the surgery is said to have performed over 200 such surgeries
and it is motivated that
there is no surgeon with matching
credentials in South Africa. In addition there are costs
considerations. In South Africa the
surgery costs an approximated
amount of R500 000-00 whereas in Thailand the cost is down to R220
000-00.
[6]
The applicant contends that the failure
by the respondents to make a decision while his trip is imminent,
makes this matter urgent.
This however is not the only basis of
urgency. The applicant not only applied for alteration of the
respondents' records but also
applied for a passport
.
At no point was the applicant informed
that a passport could not be issued to him while the alteration
application was pending.
[7]
Urgency is contested by the respondents.
They argue that the fact that the applicant made arrangements for
surgery while his application
for gender reassignment was receiving
attention, means that urgency is self created. It is argued that the
applicant has known
for a long time that he can only use the form of
identification issued to him by the Department of Home Affairs until
such time
that formal processes are completed
.
In this instance, that he shall be
recogn
i
sed
as male until the alteration process is finalised. The respondents do
not g
i
ve or
make any time commitments about the processing of the application.
[8]
The respondents argue in the
alternative, that the applicant has failed to exhaust all internal
remedies available to him. In fact
it
is
argued that in terms of
section 2
of the
Alteration of Sex Description and Sex Status Act 49 of 2003
,
hereinafter referred to as the
"Alteration
Act", where an application is
refused, the Director General must furnish reasons for his decision'
whereafter, the applicant
may approach the Minister for an appeal. In
the event the appeal is not upheld, the aggrieved applicant may
approach the magistrate
for relief. The urgency of the matter, the
failure to exhaust internal remedies as well as the non-joinder of
the applicant's wife,
were raised as preliminary issues. The
respondents further argue that the
Promotion of Administrative
Justice Act 3 of 2000
, hereinafter referred to as
"PAJA",
is not applicable in that internal
remedies have not been exhausted and further that there can be no
review when the Director-General
has not taken decision.
[9]
All applications brought on an urgent
basis must meet the requirements of Rule 6(12) of the Uniform Rules
of Court, as a first hurdle
before the matter can be enrolled and
heard
.
Absent
such satisfaction,
the
court
will decline
to
entertain
the application and will simply struck
it
from
the
roll. The applicant must set out in
explicit terms, circumstances which he avers render the matter urgent
and also why the applicant
contends that he will not be afforded
substantial redress at a hearing in due course.
[10]
Notshe AJ in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others (11/33767) [2011] ZAGPJHC 196 (23 September
2011),
had
occasion to say the following;
"[5]
The
issue of whether
a
matter should be
enrolled and heard as an urgent application is governed by the
provisions of 6(12) of the Uniform Rules
.
The aforesaid
sub rule allows the court or a Judge in urgent applications to
dispense with the forms and service provided for in
the rules and
dispose of the matter at such time and place in such manner and in
accordance with such procedure as to it seems
meet. It further
provides that in the affidavit in support of an urgent application
the applicant
"..
.
shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he
could
not be
afforded substantial redress at
a
hearing in due
course."
[6] The import thereof is that
the procedure set out in rule 6(12) is not there for taking. An
applicant has to set forth explicitly
the circumstances which he
avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims
that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether
a
matter
is sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of absence of substantial
redress in an application in due course
.
The rules
allow the court to come to the assistance of a litigant because if
the latter
were
to wait for the normal course laid down by the rules it will not
obtain substantial redress
.
[7] It is important to note
that the rules require absence of substantial redress. This is not
equivalent to the irreparable harm
that is required before the
granting of an interim relief It is something less. He may still
obtain redress in an application in
due course but it may not be
substantial
.
Whether an applicant
will not be able obtain substantial redress in an application in due
course will be determined by the facts
of each case. An applicant
must make out his cases in that regard.
[8] In my view the delay in
instituting proceedings is not
,
on its own
a
ground
,
for refusing
to regard the matter as urgent. A court is obliged to consider the
circumstances of the case and the explanation given
.
The important
issue
is
whether, despite the delay, the applicant can or cannot be afforded
substantial redress at
a
hearing in due
course. A delay might be an indication that the matter is not as
urgent as the applicant would want the Court to
believe. On the other
hand
a
delay
may have been caused by the fact that the Applicant was attempting to
settle the matter or collect more facts with regard
thereto.
[9] It means that if there is
some delay in instituting the proceedings an Applicant has to explain
the reasons for the delay and
why despite the delay he claims that he
cannot be afforded substantial redress at
a
hearing in due
course. I must also mention that the fact the Applicant wants
to
have the
matter
resolved urgently does not render the matter urgent. The correct and
the crucial test is whether, if the matter were to follow
its normal
course as laid down by the rules
,
an Applicant
will be afforded substant
i
al
redress. If he cannot be afforded substantial redress at
a
hearing in due
course then the matter qualifies to be enrolled and heard as an
urgent application
.
If however
despite the anxiety of an Applicant he can be afforded
a
substantial
redress in an application in due course the application does not
qualify to be enrolled and heard as an urgent application
."
[11]
The assertion that the applicant has
known for a long time that his application was receiving attention
but never took steps to
institute these proceedings
,
and therefore, that this application is
not urgent
,
falls
to be rejected. As Notshe AJ said in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others,
a
delay
is not on its own a ground for disposing of the matter as not being
urgent. The court must still determine whether there is
absence of
substantial redress in due course. If there is absence of substantial
redress, then the matter deserves to be considered
urgent.
[12]
There was
,
in my view, indubitably a short delay in
launching the applicat
i
on
.
Its seems clear however that the
applicant engaged the respondents and was hoping that the
applications made to the respondents
,
that of change of gender marker as well
as for a passport would find traction. The assurances he received
from the respondents did
not suggest otherwise
.
The fact that the applicant proceeded to
make flight bookings and paid the surgeon to secure an appointment,
knowing very well that
the applications were pending, is in my view
proof that the applicant was not derelict in his approach to the
matter and had in
fact received assurances that his application was
receiving attention
.
I
am of the view that were the applicant to take the option of
approaching the court in due course, he would not be afforded
substantial
redress
.
I
therefore ruled that the matter was urgent and it was enrolled
accordingly.
Applicant's case
[13]
The applicant sets out the following
case in the founding affidavit;
13.1.
That he was born on
1
February 1971 as a male person
.
Such gender status was allocated to him
and he was accordingly issued with a birth certificate by the
Department of Home Affairs
and subsequently an Identity Document.
From a young age the applicant felt trapped in a wrong body, that of
a male person and in
fact identified himself as a girl while growing
up. Due to family and societal pressure, he conformed, dressed and
lived like a
male person. Even in terms of personal relationships, he
tended to conform to what society considered "normal".
13.2.
In line with societal expectations, on
10 July 1999 the applicant married a woman, whose details are not
necessary for purposes
of this application. No children were born of
that
marriage.
13.3.
In early 2014 the applicant started
living as a woman openly. Consequently, in June 2015 the applicant
separated from her wife and
since then they have not been living
together as husband and wife. I hasten to add that divorce
proceedings are pending in the
Gauteng Division, Johannesburg, under
case number 16673/2017.
13.4.
The applicant underwent psychotherapy as
well as hormonal treatment to prepare for the transition from being
male to female. He
also set up an appointment with a surgeon
in
Thailand for a medical procedure for the
reassignment of his gender from male to female.
13.5.
On 9 July 2015 the applicant applied to
the Department of Home Affairs for alteration of her gender
description on the population
register. The application was brought
in
terms of
section 2 of the Alteration Act as well as section 7(2) of the Birth
and Deaths Registration Act 51 of 1992. The application
was launched
complete with medical reports of Ella Kotze a Counselling
Psychologist as well as Dr Trimp as prescribed by the Alteration
Act.
13.6.
On 22 July, 19 August and in September
of 2015, the applicant made inquiries with the Department of Home
Affairs and was informed
that the application was receiving
attention. On the latter date an escalation reference number was
given to him.
13.7.
On 21 September 2015 the Department of
Home Affairs informed him that the application he launched was
deficient in that the Department
required an additional doctor's
report
.
Such
a report,
prepared by Dr Adam Liebman
was expeditiously obtained and transmitted to the Department the same
day.
13.8.
In December of 2015 when the applicant
contacted the Department of Home Affairs to make inquiries again, he
was informed that the
application was in the process of being
finalised. He was again provided with a tracking or reference number.
13.9.
In May 2016 the applicant made further
inquiries and was yet again given another tracking number after being
informed that his application
was being processed
.
13.10.
See
i
ng
that a year had gone by
,
the
applicant approached the Legal Resources Center who on 1 September
2016 took up the cause of the applicant and wrote a letter
to the
Department of Home Affairs. Soon thereafter the applicant was
contacted and informed that the Department of Home Affairs
was able
to pick up on their system that he was married and that they had
converted and registered the marriage as a civil union
.
13.11.
The applicant kept contact with the
respondents and was at all times informed that his application was
receiving attention
.
13.12.
On 17 January
,
9 February and 8 March 2017, the
applicant was contacted by the respondents and informed that his
application was still being processed
.
13.13.
On 2 March 2017 the applicant applied
for a passport and received confirmation of a booking. At the time
the application was
made he was due to
travel to Thailand on 21 August 2017
.
He
was assured, whenever contact was made with the respondents, that his
application was receiving attention
.
13.14.
On 12 April 2017 the applicant received
confirmation of a booking to attend the offices of the Department of
Home Affairs to process
his passport application.
13.15.
On 14 March the applicant
,
together with her legal representative
had attended the offices of the respondents at Killarney to apply for
a passport. On that
day her biometrics were captured on their system
.
On 18 April 2017 he again attended their
offices but was advised that his application for a passport could not
be processed as his
application for gender reassignment was still in
process and/or pending
.
13.16.
Despite attending the offices of the
respondents as aforesaid
,
the
applicant received an email on 1 May 2017 berating him for failing to
attend at their offices to process the passport application
.
[14]
The applicant takes the view that the
fact that he is still married is irrelevant to his application for
gender reassignment or
alteration. Further, that his right to dignity
is being violated as a result of the unexplained delay on the part of
the respondents.
He asserts that he struggles to function in a
society where his physical appearance, that of a fema
l
e
person
,
does
not match the gender descr
i
ption,
that of a male person, which is contained in the identification
documents. As a result he cannot travel by air to any
destination.
One need only imagine how the applicant would be viewed by
immigration officials when he presents himself as a woman
at the
airport and yet the travelling documents show that he is male.
Respondent's
case
[15]
The respondents in addition to the
preliminary
issues
mentioned
above, paint a picture of a government department, the Department of
Home Affairs, that is bereft of any solutions to
the challenges it
faces in relation to gender alteration, birth registration details
and the issuing of passports to persons who
are in the same position
as the applicant. For a passport to be issued, the respondents argue,
information is sourced from
their
computer systems which have details,
in
the case of the applicant, describing
his gender as male. The coding as male is carried over
to
the applicant's identity number. The sum
total of this
is
that
the birth register needs to be altered to reflect the new assigned
gender and only thereafter can
the
applicant be issued with a new identity
document and passport.
[16]
The respondents point to another
challenge
,
namely,
the fact that the applicant is, according to their records, still
married by civil rites. This, it is argued, presents a
challenge on
two fronts
.
The
first challenge being the fact that the applicant's spouse has not
been
joined
in
these proceedings. To that extent, the respondents argue that there
is
non-joinder
and
that
such
non joinder renders the application defective
.
The fact that the applicant has
instituted divorce proceedings, is
according to the respondents
,
of
no moment in that the records remain unaltered until a decree of
divorce is issued, or until his status is altered by the death
of his
spouse
.
[17]
Lastly, the respondents believe that
s
i
nce they
have not taken an administrative decision, there can be no review
proceedings. In the alternative, the respondents take
the view that
should the court find that the failure to take a decision constitutes
administrative action, then in that event they
believe that the
applicant has not exhausted all available internal remedies
.
[18]
To the factual allegations contained in
the applicant's affidavit, the respondents have chosen to
"deny
the correctness of the allegations
as
contained in these paragraphs, which
are in conflict with my version
,
I (they) note the a/legations as
contained therein".
The version
which it is contended conflicts with that of the applicant,
i
s
not set out in the affidavit. The affidavit of the respondents is
devoid of the factua
l
matr
i
x
of the case
.
In
so far as the facts are concerned this court has before it only the
facts set out by the applicant.
Issues
[19]
Other than the issue of urgency which I
have dealt with above, the following are in my view issues for
determination;
19.1.
The defence of non-joinder
;
19.2.
Whether the delay or failure by the
respondents in the alteration of the birth register
,
from male to female is reviewable
administrative action
;
19.3.
Whether the applicant has made a case
for the alteration of the birth register
;
19.4.
Whether the applicant has made a case
for the issue of an identity document and passport
,
in
li
ne
with his altered gender status
.
[20]
Whereas the respondents raised the
non-joinder defence as a preliminary issue, it is closely tied to the
reasons why the respondents
believe that the law as it currently
stands is not enabling to the alteration process, where the applicant
is marr
i
ed
.
For that reason I shall deal with
i
t
below when
I
consider
whether there is merit in that contention
.
The law briefly and evaluation
[21]
An action will fall to be reviewab
l
e
under PAJA if it is an administrative act
i
on
.
Section 1 of PAJA defines an
adm
i
nistrative
action as
;
"
......
any
decision taken or any failure to take
a
decision by
-
(a)
An organ of state
,
when
(i)
exercising
a
power
in terms of the Constitution or
a
provincial consti
t
ution
;
or
(ii)
exercising
a public power or performing a public function in terms of any
legislation
;
or
(b)
A natural or juristic person
other than an organ of state when exercising
a
public power or performing a public
function in terms of an empowering provision, which adversely affects
the rights of any person
and which has
a
direct, external legal effect.
."
[22]
An action qualifies as an administrative
action and reviewable under PAJA provided it meets three requisites,
namely
;
action
taken by an organ of state exercising power
,
the action must adversely affect the
rights of another person, and must have a direct and external legal
effect.
[23]
Section 6 (2) of PAJA provides as
follows;
"A court or tribunal has
the power to judicially review an administrative action if-
(a)
.
..
.
..
………
.
(g) the action concerned
consists of
a
failure to take a
decision
;
"
[24]
Section 6 (3) (a) provides as follows
;
"If any person relies on
the ground of review referred to in subsection (2) (g)
,
he or she may
in respect of a failure to take
a
decision
,
where-
(a)(i) an administrator has
a
duty to take
a
decision
;
(ii) there is no law that
prescribes
a
period within
which the administrator is required to take that decision
;
and
(ii) the administrator has
failed to take that decision,
institute proceedings in
a
court or tribunal
for judicial review of the failure to take the decision on the ground
that there has been unreasonable delay in
taking the decision;"
[25]
There are countless judgments in this
and other Divisions, that deal with the failure/neglect of public
officials to perform their
functions
in
accordance with the law or where they
are tardy in the performance of their functions. ( See
Noupoort
Christian Care Centre v Minister, National Department of Social
Development
2005 (1) BCLR 1034
(T); Offit Enterprises (Pty) Ltd and
Another v Coega Development Corporation (Pty) Ltd and Others
2011 (2)
BCLR 189
(CC); lntertrade Two (Pty) Ltd v MEC for Roads and Public
Works Eastern Cape and Another
2007 (6) SA 442
(Ck)
)
Therefore, to the extent that the respondents argue that the
application must fail, because there is no decision to review, that
argument
is
wrong
.
It is my judgment that the failure by
the Director-General to delay making a decision about the applicant's
application for gender
alteration is reviewable administrative
action.
[26]
Section 2 of the Alteration Act, sets
out the approach to applications for alteration of sex description
and sex status. What I
consider to be relevant portions read thus;
"(1) Any person whose
sexual characteristics have been altered by surgical or medical
treatment or by evolvement through development
resulting engender
reassignment, or any person who is intersexed may apply to the
Director-General of the National Department of
Home Affairs for the
alteration of the sex description on his or her birth register.
……
..
(3)
If the Director-General refuses
the application contemplated in subsection (1), he or she must
furnish the applicant with written
reasons for the decision
.
(4)
If an application contemplated in
subsection (1) is refused, the applicant may appeal to the Minister
of Home Affairs against the
decision taken by the Director-General.
………
(6) If an appeal in terms of
subsection (4) is refused, the applicant may apply to the magistrate
of the district in which he or
she resides for an order directing the
change of his or her sex description.
"
[27]
The respondents argue that the applicant has failed to exhaust all
internal remedies in that
he has failed to engage the
Director-General, failing him, appeal to the minister and thereafter
launch an application before a
magistrate
.
My reading of the
section is that it sets out the procedure to be
followed
and provides certain specific remedies in the event of a particular
outcome. Section (2)(2) of the Alteration Act sets
out what
information is to accompany the application for alteration of one's
sex status on
the
birth register of
the Department. In terms of the section, a report by a medical
practitioner confirming the gender reassignment
must form part of the
application. The applicant has submitted all the required
information
and/or reports and
the respondents do not contend otherwise. The applicant has in
addition supplied a report by a qualified psychologist.
This is
undisputed.
[28]
The respondents in turn have not made a
decision on the outcome of the application except to raise before
this court, as an obstacle,
the fact that the applicant
is
married as well as the
fact
that the application presents certain
challenges in relation
to
legislation
governing marriages and civil unions. I take the view that the
applicant cannot be expected to
invoke
the
appeal process set out in section
2(3), 2(4) and (2)(6) of the Alteration Act, which essentially deals
with the process after the
Director-General has refused the
application and supplied reasons. In
casu
the Director-General has simply
failed to make a decision. Such failure is,
in
my view, reviewable under PAJA. Two
years have passed since
the
applicant
launched the application for alteration. No substantive assessment
and pronouncement thereon has been undertaken by the
respondents.
[29]
In terms of section 7(2)(a) to (c) of
PAJA, a court or tribunal may not review an administrative action
unless internal remedies
are exhausted
.
Where the court is not satisfied that
internal remedied have been exhausted, it may direct that there be
such internal procedural
compliance before the matter is heard
.
The court however has a discretion,
where exceptional circumstances are shown, to exempt the aggrieved
person from exhausting available
internal remedies
.
Even if I am wrong in my finding that
the applicant can not invoke the appeal process in that his
application has not been adjudicated
upon and the Director-General
has failed to make a decision, I consider the circumstances under
which the applicant has been coerced
to approach this court, to be
compelling enough to warrant an approach to this court on review, in
the interest of justice.
[30]
Whereas the respondents emphasise the
fact that the applicant is, according to their records married, and
that this presents a challenge
to the alteration of the birth
register as sought by the applicant, in my reading of the Alteration
Act, marital status is not
a factor to be taken into account in the
alteration process at all. The contention by the respondents
therefore that
"the alteration
of
sex
affects
the identification profile of the applicant
as
whole including the new identity and
passport numbers. It
is
further
submitted that the relief sought is incapable of being implemented
because his status cannot be changed to
a
female while being married
as
husband to someone in terms of the
Marriages Act,
is one I do not agree
with. I accept that the identification
profile on the registers of
the
applicant
,
on the records of
the respondents will be affected, including the identity and the
passport number
.
This however is but
the effect of the alteration process and not an impediment or an
obstacle thereto. An applicant who seeks gender
reassignment need
only meet the requirements of section 2(2) of the Alteration Act.
[31]
Additionally,
in
support of the constraints which
the
respondents perceive they have, which
in
their view are an impediment to the
alteration of the applicant's gender on their records, they make the
following assertions;
31.1.
Had the applicant been in a same
sex relationship subsequent to the coming into operation of the
Civil
Union Act 7 of 2006
, he would have been entitled to marry in terms
thereof;
31.2.
Had
the
applicant undergone a sex alteration
prior to the marriage to her current wife, s/he would have ben
entitled to marry under
Civil Union Act;
31.3.
That the current regulatory
framework is not permissive of a couple married
in
terms of the Marriages Act 25 of 1961,
in circumstances where
the
sex
alteration by one partner has resulted in the marriage becoming a
same-sex marriage
;
31.4.
That once a person alters his/her
sex, the marriage remains
"a
lacuna
within the context of the current regulatory framework
"
.
This is because on the register the
applicant would remain married to a same sex partner notwithstanding
the fact that he/she would
not meet the
criteria
for marriage under the Marriages Act, which does not permit same sex
marriages
.
[32]
The
respondents'
approach to the
inability
or unwillingness
to
come to
the
assistance of the applicant is embodied
in
this
extract from the opposing affidavit, which reads as follows;
"it
is therefore on the basis of such
a
very
grey area in our Jaw that the DHA
is
unable to change
a
person
'
s
gender profile while the marriage in terms of the Marriages Act still
subsists".
From the extract, it
is clear that the
respondents
elevate
the applicant's marital status as a determinant whether or not to
permit alteration. This flies in the face of
the
Alteration Act, or any of the Acts to
which the respondents have made reference. None of those Acts list
marital status as a factor
to be considered or taken into account.
Simply put, spousal consent or involvement
is
not a requirement in an application for
alteration of the sex or gender description on the records of the
respondents
.
[33]
The summary from the respondents' opposing affidavit set out
in
para 32 above,
contains noth
in
g
but conjecture, hypothesis and postulations
.
I differ with the
contention that
"
..
.
the
current regulatory framework is not permissive of
a
couple married in
terms of the Marriages Act 25 of 1961, in circumstances where the sex
alteration by one partner has resulted in
the marriage becoming
a
same-sex
marriage."
It
is the respondents' self created obstacles that inform such a
position. The fact that the applicant is married or that divorce
proceedings are pending is in my view irrelevant to the applicant's
gender alteration application. Given that an applicant's marital
status
is
irrelevant, and that
the spousal consent
is
not a requirement
,
the
respondents
have fallen short of showing why the applicant is not entitled to the
relief he seeks, particularly when regard is had
to
the fact that all
the requirements of the Alteration Act have been met.
[34]
I find that there
is
no legal obstacle to the alteration of
the applicant's gender from male
to
female. With the alteration comes the
need to make compliant the gender markers on the Ident
i
ty
Document as well as the Passport to be issued to the applicant. The
effect of the position taken by the respondents, that the
law has
tied their hands, means that it would serve no useful purpose to
review the decision of the respondents and remit the matter
to the
decision maker with directives.
It
is
my view that this court is better placed to make the decision.
[35]
It needs to be emphasised that the
Department of Home Affairs can not extend its legislative tentacles
into the privacy of homes
of the public whom it serves. It must deal
with administrative matters alive and sensitive to the fact that the
public has
rights.
In
the services it renders,
it
must
not be prejudiced, must ensure self realisation of those who approach
it, must uphold equality before the law, must protect
freedom of
choice and treat the public with requisite promptitude and dignity.
[36]
The applicant has asked that due to the
sensitivity of the issues dealt with in this matter, his identity be
not made public. The
respondents agree and so do I. I have also
referred to the applicant as a male person in these proceedings
simply because his altered
status has not been formalised
.
I however accept that I am ceased with
an app
l
ication
launched by a female person.
Costs
[37]
The applicant was hard done by the lax
attitude which the respondents displayed in handling her application
.
The lapse of time in the alteration of
the birth records in circumstances where, in my view, there were no
legal obstacles in the
way of doing so, is conduct to which the court
takes a dim view. The applicant was placed under so much pressure to
the extent
that she was forced to approach this court for relief on
an urgent basis. A punitive
cost order is therefore warranted.
[38]
These were my reasons for the order
which I marked
" X
"
.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Applicant's Attorneys :
Clarks Attorneys
c/o GJ van Zyl Attorneys
1240 Starkey Road, Waverly
Pretoria
Respondents'
Attorneys: State
Attorney Pretoria
SALU Building
Cnr Thabo Sehume & Francis
Baard
Pretoria