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[2019] ZAFSHC 155
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Ramolebo v Minister of Home Affairs and Another (2015/2018) [2019] ZAFSHC 155 (19 September 2019)
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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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2015/2018
In
the matter between:
THABISO
ERNEST
RAMOLEBO
Applicant
and
THE
MINISTER OF HOME AFFAIRS
1
st
Respondent
THE
DIRECTOR-GENERAL OF HOME AFFAIRS
2
nd
Respondent
CORAM:
DAFFUE, J
HEARD
ON:
5 SEPTEMBER 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
19 SEPTEMBER 2019
I
INTRODUCTION
[1]
The
applicant, Mr Thabiso Ernest Ramolebo, seeks a name change in order
to be known in future as Senzo Mavumegwane. He provided
detailed reasons in the application to this court why his forename
and surname should be amended by the Director General of the
Department of Home Affairs in accordance with the provisions of s 26
of the Births and Deaths Registration Act (“the Act”).
[1]
More will be said about this later.
[2]
The application is opposed and after hearing
argument on behalf of the parties on 5 September 2019, I reserved
judgment.
II
THE PARTIES
[3]
As mentioned, the applicant is Mr Thabiso Ernest
Ramolebo. He is married in accordance with customary law and
the couple have
four children. Applicant’s father and
mother as well as his customary wife support his application.
Adv JS Rautenbach
appeared for the applicant on instructions of Hill
McHardy & Herbst Inc.
[4]
The Minister of Home Affairs is cited as the
first respondent and the Director General of the said Department as
the second respondent.
Both parties oppose the application.
An answering affidavit has been deposed to on their behalf by Ms
Nosimanga Jane Limo
who describes herself as an Assistant Manager and
Civil Head. It transpired during argument that Ms Limo is attached to
the Botshabelo
office of the Department of Home Affairs. A
resolution was also handed up from the bar indicating that she was
authorised
to sign documents and affidavits on behalf of the
Department as from 21 August 2018, the day she deposed to the
answering affidavit.
Adv ND Khokho appeared for the respondents
on instructions of the State Attorney.
III
THE RELIEF SOUGHT
[5]
Applicant seeks the following relief as is
evident from the notice of motion:
“
1. That the 2
nd
Respondent be ordered to within 30 days of date of this order,
authorize the alteration of the Applicant’s name and surname
in
terms of Section 27 of Act 51 of 1992 to the following:
“
SENZO
MAVUMEGWANE”;
2.
That the Respondents pay the costs of the
application in case of them opposing the application;
3.
Any further and/or alternative legal relief.”
[6]
Mr Rautenbach
acknowledged in his heads of argument that the reference to s 27 is
wrong and that s 26 is the applicable section.
During oral
argument he conceded that this court cannot on the papers as they
stand and in the manner in which the application
was brought, direct
the Director General to alter applicant’s forename and surname
as requested in the notice of motion.
He eventually submitted
that the court should
merely
direct
the Director General to consider the applicant’s application in
accordance with the provisions of s 26 of the Act.
[7]
Mr Khokho submitted that the application should
be dismissed with costs, although he conceded that the court might
consider directing
the Director General to consider applicant’s
application for a name change in accordance with the provisions of s
26 within
a certain timeframe.
IV
THE ORDER OF 17 MAY 2018
[8]
The matter came before me on 17 May 2018 in the
unopposed motion court. I was not prepared to grant the application,
firstly because
it was not served on the Director General, but more
importantly, as I was concerned about the rights of creditors and
other third
parties such as applicant’s employer and his wife
(on the basis that he was indeed married). I granted the
following
orders:
“
1. The matter is
postponed to 12 July 2018.
2. Applicant is granted
leave to supplement his papers specifically in respect of:
2.1
the applicant’s credit records with reference to the names,
addresses and account numbers of creditors must be provided;
2.2
his wife’s names together with a supporting affidavit of her;
2.3
the names and Identity numbers of his children;
2.4
any immovable or movable property owned by him;
2.5
his employer’s name and address together with a supporting
affidavit of the employer.
3. The application papers
and this order shall be served on the Director General of the
Department of Home Affairs forthwith in
terms of the rules of court.
”
[9]
As evident from my order, I postponed the matter
to 12 July 2018 whereafter it was postponed a few times and
eventually placed on
the opposed roll of 5 September 2019.
V
THE APPLICATION PAPERS
[10]
A full set of application papers were filed,
including the supplementary affidavit filed upon the order of 17 May
2018. Save
for the name change which applicant believes he is
entitled to, it appears from the replying affidavit to which he
attached a copy
of the baptism log as annexure “A”, that
his date of birth is indeed 18 November 1969 and not 20 November 1969
as is
reflected in the identity number allocated to him, to wit […].
He stated that he was also entitled to an amendment
of his identity
number, but his counsel made it clear that no such relief was
sought. Counsel correctly took this stance,
bearing in mind the
respondents’ submission that applicant tries to create a
totally
“
new person”
with
a new forename, a new surname as well as a new identity number.
It is apparent that the fifth and sixth digits of his
identity number
would have to be changed from 20 to 18 if the identity number is to
be amended.
VI
REASONS FOR THE AMENDMENT
[11]
Applicant explained in detail why he wants to be
known as Senzo Mavumegwane in future. His version is not
disputed by respondents,
but as will be indicated later the
respondents are of the view that applicant is not entitled to the
amendments for a number of
reasons. Applicant relies on the
following background:
11.1 His
grandfather was known as Sentso Ernest Mafomekoane. This is a
“Sothofied” spelling of the isiZulu
names Senzo
Mavumegwane.
11.2 Applicant is the son
of Tabelo Benedict Motamolane and Maleshoana Cecilia Ramolebo
according to the baptism log, annexure “A”
to the
replying affidavit. In terms thereof applicant was born on 18
[…] 1969 and baptised on 20 […] 1969.
The names
of his mother and father on this document correspond with the
papers.
11.3 Applicant’s
parents divorced in 1978 and as he and his siblings remained under
the custody of their mother, their surnames
were changed to reflect
that of the mother, to wit Ramolebo.
11.4 During 2007
his parents reunited and they as a family started to research the
history of their names and surnames.
They established that the
origin of his grandfather’s surname, Mafomekoane, a “Sothofied”
version, is the isiZulu
surname, Mavumegwane.
11.5 Applicant’s
father used the surname Motamolane in order to honour his father’s
first name, to wit Motamolane.
11.6 Applicant
established that the Mavumegwanes were traditionally soldiers of the
great King of the Zulu people, King Shaka.
Therefore he wants
to ensure that the family name does not
“
die.”
He is not interested to make use of the “Sothofied”
spelling of the surname, but insist on the isiZulu spelling,
Mavumegwane.
11.7 The applicant
has filed supporting affidavits from his father as well as his
father’s sister, Ms Mohatla Magdalina
Lesupi. He has also
attached to the supplementary affidavit confirmatory affidavits of
his wife, Ms Moithumi Albertina Banyane
and Adv Charlie Naidoo of the
Legal Department of Mangaung Metropolitan Municipality in which
department applicant is currently
employed.
VII
COMPLIANCE WITH THE ORDER OF 17 MAY 2018
[12]
In compliance with my order of 17 May 2018
applicant filed a supplementary affidavit to which he attached the
birth certificates
of his and his wife’s four children who are
19, 14, 11 & 7 years old respectively. He has also provided
the court
with his credit record and the names, addresses and account
numbers of creditors.
[13]
I am satisfied that applicant substantially
complied with the order.
VIII
THE BASIS OF RESPONDENTS’ OPPOSITION
[14]
It is confirmed that the Department of Home
Affairs at its Botshabelo office received three applications from
applicant, one to
change his surname as indicated in the papers in
accordance with s 26 of the Act, the second to change his forename to
Senzo in
terms of s 24 of the Act, and the third to change his date
of birth from 20 […] 1969 to 19 […] 1969 in terms of s
7(2) of the Act.
[15]
On receipt of the applications several enquiries
were directed to him in order to substantiate the applications, but
according to
respondents’ deponent, applicant did not comply to
her satisfaction.
[16]
The opposition is based on any of the following
grounds:
16.1
Applicant is attempting to create a new person
with a new surname, a new forename as well as a new date of birth
which will result
in a new identity number.
16.2
The effect of the application and in the event of
it being granted, would be to give birth to a new born by the name of
Mavume
n
gwane
Senzo and eliminate the existing person by the name of Ramolebo
Thabiso Ernest. I highlighted the “n” in
the
surname. This is a crucial aspect. Respondents’
deponent throughout her affidavit refers to the wrong surname
and it
is perhaps no wonder that the surname, Mavumegwane cannot be traced
in the Department of Home Affairs’ records.
16.3
According to the respondents’ deponent the
effect of granting the application would be to create havoc and
difficulty within
the respondent’s management systems with
regard to identifying, monitoring and regulating its Births and
Deaths Register
and it would also create difficulty for other law
enforcement agencies in their bid to combat crimes.
16.4
The applicant failed to provide the Botshabelo
branch of the Department of Home Affairs (where the deponent works)
with a birth
certificate, a baptismal certificate or any other
document as proof of his date of birth of 19 […] 1969 (or 18
[…]
1969 for that matter.)
16.5
In order to change applicant’s surname from
Ramolebo to Mavume
n
gwane
the Department needed a consent letter from a person using the
surname Mavume
n
gwane
as well as a certified copy of that person’s identity document
which applicant failed to provide.
16.6
In terms of
the Identification Act 16 of 1997(sic)
[2]
a person can only change his surname to either his or her biological
mother or father’s surname and no one else, unless it
is
through authorised legal acquisition. Mavume
n
gwane
is neither the surname of applicant’s father nor his mother.
16.7
The deponent, who has been handling applicant’s
application all along, certified that there is no person in the whole
of the
Republic of South Africa bearing and registered under the
surname Mavume
n
gwane.
I emphasise again that right through the affidavit of the
respondents’ deponent, references are incorrectly made
to the
wrong spelling of Mavumegwane insofar as the deponent refers to
Mavume
n
gwane.
16.8
Neither applicant’s wife, nor his four
children use his current surname, Ramolebo and, what is more
confusing is that he only
attempts to change his surname and not
those of his wife and children.
16.9
The relief sought by the applicant is in law
irregular, unlawful and impossible.
16.10
Having perused the register of deaths in South
Africa starting from 1800 until date hereof, no deceased person
carrying the surname
Mavume
n
gwane
(again wrongly spelled) has been registered to be dead and the same
applies to births registered during the same period.
Therefore,
during a period of 218 years no person carrying the surname of
Mavume
n
gwane
was born or passed on according to the records of the Department of
Home Affairs and therefore it is alleged that the surname
does not
exist or has never existed.
16.11
The application is opposed in order to prevent
illegal immigrants entering the country, using and adopting surnames
of people without
any links to the people carrying the said surname,
and in any event, applicant failed to establish the background and
any relationship
between him and the holder of the particular
surname.
IX
THE RELEVANT LEGISLATION
[17]
The Director General may supplement or rectify any particulars of any
person in any document submitted or preserved in terms
of the Act or
included in the population register which are not correctly
reflected.
[3]
[18]
The Director General may alter the forename of a person in accordance
with an application in the prescribed manner.
[4]
[19]
Section 26 of the Act and regulation 18 issued in terms of the Act
need to be quoted in full to put the reader in the picture
as the
dispute relates to the interpretation and application thereof.
Section 26 reads as
follows:
“
26
Assumption of another surname
(1)
Subject to the
provisions of this Act or any other law, no person shall assume or
describe himself or herself by or pass under any
surname other than
that under which he or she has been included in the population
register, unless the Director-General has authorized
him or her to
assume that other surname: Provided that this subsection shall not
apply when-
(a)
a woman after her marriage
assumes the surname of the man with whom she concluded such marriage
or after having assumed his surname,
resumes a surname which she bore
at any prior time;
(b)
a married or divorced woman
or a widow resumes a surname which she bore at any prior time; and
(c)
a woman, whether married or
divorced, or a widow adds to the surname which she assumed after the
marriage, any surname which she
bore at any prior time.
(2)
At the request of any person, in the prescribed manner, the
Director-General
may, if he or she is satisfied that there is a
good
and sufficient reason
as may be prescribed for that person's assumption of another surname,
authorize the person to assume a surname other than his or
her
surname as included in the population register, and the
Director-General shall include the substitutive surname in the
population
register in the prescribed manner.”
(emphasis
added)
[20]
Rule 18 reads as follows:
“
18
Assumption of another surname
(1)
An application for assumption of another surname referred to in
section 26 of the Act by a person of age must be made on Form
DHA-462
or DHA-196 illustrated in
Annexure
10
and
Annexure
11
,
as the case may be.
(2)
The reasons referred to in section 26(2) of the Act must relate to-
(a)
a change in the
marital status of a woman;
(b)
assumption
by a person of his or her biological father's surname, where the
father has recently acknowledged paternity in terms
of
regulation
13
or
14
;
or
(c)
protection
of a person in terms of the Witness Protection Act, 1998 (
Act
112 of 1998
).
(3)
An application contemplated in subregulation (1) must be accompanied
by-
(a)
a certified copy of the
identity document or birth certificate of the applicant;
(b)
a certified copy of the
identity document or valid passport of the biological mother or
father or both parents of the child, as
the case may be;
(c)
where
applicable, a certified copy of the marriage certificate of the
parents;
(d)
where applicable, a
certified copy of the death certificate of any deceased parent;
(e)
where applicable, a letter
issued by the Director: Witness Protection; and
(f)
proof of payment of the
applicable fee.
(4)
Upon approval of an application contemplated in subregulation (1),
any alteration of a forename, surname or assumption of another
surname made in terms of section 24, 25 or 26 of the Act must be
made-
(a)
by entering the altered
forename or surname or assumed surname of the minor in the birth
register; and
(b)
if the particulars of the
person have been included in the national population register, by
including the altered forename, surname
or assumed surname in the
national population register, without erasing the previous forename,
surname or assumed surname.
(5)
The assumption of another surname contemplated in subregulation
(2)
(a)
,
(b)
or
(d)
shall
not have the effect of changing a person's identity number.”
[21]
The Bill of Rights must be considered insofar as applicant’s
insistence on a name change relates directly to his cultural
and
linguistic background. Section 30 of the Constitution
stipulates:
“
Everyone
has the right to use the language and to participate in the cultural
life of their choice”
subject
to the condition contained in the section.
Section
31(1), paraphrased appropriately, specifies as follows:
“
Persons
belonging to a cultural … or linguistic community may not be
denied the right, with other members of that community
– (a) to
enjoy their culture ,…. and use their language; and (b) to
form, join and maintain cultural…. and
linguistic
associations…..”
[22]
Section 39 of the Constitution should also be kept in mind in
interpreting the Act in order to
“promote
the spirit, purport and objects of the Bill of Rights.”
X
AUTHORITIES
[23]
The only reported judgment on the issue is one by Bozalek J in
Wile
v MEC, Department of Home Affairs, Gauteng
[5]
and I quote extensively:
“
[46] It
will be seen that regulation 18(2) purports to limit the permissible
reasons for the assumption of another surname to only
three
categories (one of which, a woman’s marital status, is already
covered by the provisions of section 26(1). It was on
this basis that
the defendants’ Counsel submitted that the relief sought by the
first plaintiff was incompetent inasmuch
as her reasons for assuming
another surname could not be entertained by the Director-General.
[47] In my view,
to the extent that regulation 18 seeks to establish a closed list of
reasons for the assumption of another surname,
it is
ultra
vires
in that it misconceives the meaning and scope of
section 26(2) of the Act, as does the defendants’ argument
based on this
interpretation of the regulation.
[48] Section
26(2), in providing that a surname may be changed if the
Director-General is satisfied “
that there is a
good
and sufficient reason
” is cast in wide terms.
This is understandable since, apart from the reasons listed in
regulation 18,
one can readily conceive of many other reasons why
a person might, legitimately, wish to change his or her surname. By
way of example,
that person’s existing surname may cause him or
her embarrassment because of its meaning or associations, or it may
be unpronounceable
to all but a few persons
. It would be strange
indeed if, no matter how compelling a reason a person had for the
change of a surname, he or she was precluded
from doing so because
that reason was not included in the three categories prescribed in
regulation 18.
[49] The words
“
as may be prescribed
” in section 26(2) do not, in
my view, limit the phrase “
a good and sufficient reason
”.
What they convey is merely that, for whatever reason the authorities
may have, the Minister may wish to prescribe certain
reasons which,
all things being equal, will automatically be regarded as “
a
good and sufficient reason
” for a person to assume another
surname. It is significant that the words “
as may be
prescribed
” are permissive and not prescriptive. Had it
been the intention of the Legislature that a closed list of “
good
and sufficient reason
(
s
)” could be prescribed by
regulation then the words “
good and sufficient
”
would arguably have been unnecessary. Furthermore, the word “
may
”
would not have been used but rather a peremptory formulation such as
“
as prescribed
”, or some variation thereof,
indicating that only name changes for prescribed reasons could be
permitted.
[50] That the
phrase “
as may be prescribed
” is merely permissive
is borne out by the signed, Afrikaans version of the Act where the
relevant part of section 26(2) is
rendered as follows:
“
(2)
Op aansoek, op die voorgeskrewe wyse, van ’n persoon kan die
Direkteur-Generaal, indien hy of sy oortuig is dat daar ’n
gegronde rede is, soos voorgeskryf
kan
word, vir die
persoon se aanname van ’n ander van, die persoon magtig om ’n
ander van as sy of haar van soos in die
bevolkingsregister opgeneem,
aan te neem.” (My underlining.)
[51] In my view,
both the punctuation in the text (in the form of the commas before
and after “
soos voorgeskryf kan word
”) and the use
of the word “
kan
” emphasise that the power to
prescribe “
gegronde redes
” is permissive and is a
contra-indication that the Minister enjoys the power to prescribe by
regulation a closed list of
reasons which, if not applicable to an
applicant for a name change, has the result that his or her
application must fail.
[52] The narrow
interpretation contended for by the defendants would, moreover
conduce to the Minister enjoying what borders on
legislative powers
to definitively determine, at any one time, what constitutes a “
good
and sufficient reason
” for a name change, with the result
that the Director-General would then have to close his mind to all
other applications
based on different reasons. Such a narrow
interpretation also runs counter to the presumption that remedial
statutes should be
liberally construed.
[53] For these
reasons,
I am satisfied that on a proper interpretation of section
26(2) of the Registration Act, there can be no closed list of “
good
and sufficient reason(s)
” and to the extent that
regulation 18(2) purports to decree otherwise, it is
ultra
vires
.
[58] …….It
should be clear, however, that this Court’s recognition of that
judgment
(the judgment of
the German court)
does not, in
and of itself, entitle the first plaintiff to change her forename or
surname in this country without further ado.
That must still be the
subject of an administrative application to the second defendant.”
(footnotes ignored and
emphasis added)
[24]
The Supreme Court of Appeal recently considered remedial legislation
in the form of the Extension of Security of Tenure Act,
62 of 1997
(“ESTA”).
[6]
I
immediately recognise that the
dicta
in this
judgment cannot be applied with equal force in the present matter,
but in my view these are instructive. The SCA held
that the
provisions of ESTA, being remedial legislation,
“
must
be accorded a generous interpretation, in a manner that is consistent
with the Constitution.”
Religion, cultural
belief and the right to be buried where the deceased resided during
his/her life were duly considered by the
SCA. The court, with
reference to a judgment of Zondo J,
[7]
concluded that the specific circumstances of each case must be
considered by striking a balance between the rights of the occupier
and those of the land owner and thereby infusing justice and equity
in the enquiry.
[8]
XI
EVALUATION OF THE
EVIDENCE AND SUBMISSIONS
[25]
Although applicant in one of his three applications to the Department
applied for an amendment of is identity number, no relief
is sought
in this application in that regard. I am of the considered view
that respondents’ allegation that applicant
attempts
“
to
create a new person altogether”
is not
justified. The dispute before the court is whether applicant is
entitled to an alteration of his forename and surname.
Regulation 18(5) stipulates that the assumption of another surname
shall not have the effect of changing a person’s identity
number.
[26]
The applicant seeks a mandatory interdict in his notice of motion
insofar as he requires an order directing the Director General
to do
a positive act, or put otherwise, to do something he ought to do.
A mandatory interdict may serve two purposes,
i.e.
“
to
compel the performance of a specific statutory duty, and to remedy
the effects of unlawful action already taken.”
[9]
In casu
the
applicant wants the court to compel performance of an alleged
statutory duty,
i.e.
to
change applicant’s forename and surname as indicated above.
It is emphasized that the relief sought is not in the
form of a
review of any decision taken by the Director General. Mr
Rautenbach correctly conceded during oral argument that
applicant is
not entitled to a mandatory interdict. In principle that
should have been the end of the matter, resulting
in a dismissal of
the application. However, he submitted that all aspects have
been fully canvassed and that the court would
be entitled to assist
applicant by granting relief in the form of a draft order he
presented to the court with my leave after the
hearing.
[27]
Mr Khoko, duly instructed by the State Attorney, made inputs to the
proposed order and the relief to be granted is in line
with that
requested by both parties. I repeat that Mr Khoko initially
submitted that the application ought to be dismissed
with costs.
He argued that applicant did not seek relief in the form of a review
of the Director General’s decision
and that applicant had
failed to provide all information required to consider his
applications. However, he conceded that
insofar as the Director
General had not even considered the applications, the court would be
entitled to direct him/her to consider
these in accordance with the
provisions of the Act. He also fully agreed with the judgment
by Bozalek J in
Wile
[10]
to the effect that an Act takes precedence over the regulations
issued in terms thereof.
[28]
According to applicant he
is a descendant of a soldier of the late King Shaka. He is of
Zulu origin and his father’s
surname has unfortunately been
“Sothofied” many years ago. It is evident that he
wants to preserve his isiZulu
culture and an important way of doing
it would be to change the surname to the original spelling. I
am mindful of the fact
that, because of his parents’ divorce a
few years earlier, his surname was changed to his mother’s
maiden name. Fact
of the matter is that applicant’s application
to this court is supported by his wife and closest relatives, to wit
his father
and aunt.
[29]
Mr Rautenbach argued initially that the applicant had proven the two
requisites for the applications to the Department to have
been
granted,
i.e.
applications in the prescribed form and the existence of
“
good
and sufficient reason”
to
grant them. Therefore this application should succeed. He
changed tack after I explained my difficulty with the relief
sought
in the notice of motion.
[30]
Ms Limo is a junior official in the Department, even if she might be
the head of a small office such as Botshabelo. She
never
averred that the Director General’s authority to consider the
applications in terms of sections 24 and 26 of the Act
had been
delegated to her. The resolution handed in from the bar during
argument is no proof of a delegation of power pertaining
to any of
the sections. Ms Limo was merely granted authority to depose to
affidavits in support of the respondents’
opposition of the
application. It is common cause that the Director General did
not delegate his/her authority in terms of
the applicable provisions
of the Act to Ms Limo. Her dismissal of the applications or
failure to consider them, whatever
is the correct position, is
immaterial.
[31]
Ms Limo relies on the records of the Department since 1800 in order
to support her allegation pertaining to the surname that
applicant
wants to assume. However, she on all probabilities made her
enquiries by using an incorrect spelling of the surname
as indicated
above. There is no admissible and acceptable evidence in this
regard and therefore I have serious doubt as to
whether the
Department is in possession of detailed and correct information of
all births and deaths of members of our indigenous
communities during
the period mentioned by the deponent.
[32]
I am aware of the important constitutional imperative based on the
separation of powers doctrine that where the Constitution
or valid
legislation has entrusted specific powers and functions to a
particular branch of Government, courts may not usurp that
power or
function by making a decision of their preference. Courts may
however ensure that public officials exercise their
authority within
the bounds of the Constitution or valid legislation.
[11]
Therefore, I made it clear from the onset that I cannot direct the
Director General to alter applicant’s forename and
surname.
My views as set out herein should also not be construed as
prescribing to the Director General or any other court
that may
eventually have to finally decide the dispute between the parties how
to exercise his/her discretion. I merely wish
to state the
following. Firstly, when I granted my order of 17 May 2018 I
obviously had in mind the protection of creditors
and other third
parties. Secondly, the reasoning of Bozalek J in
Wile
is sound and I am in full agreement therewith. I specifically
refer to paragraph [53] quoted above and highlighted.
That
judgment is the only judgment that I could find on s 26 of the Act.
Thirdly, I am mindful of the uncertainties and opportunities
that
might be created to commit fraud or other illegalities if alterations
were to be allowed as of right and/or willy-nilly.
However, in
the final analysis a deserving applicant should be assisted if there
is
“
a
good and sufficient reason.”
I
can think of many examples, but two will do. The common Sepedi
surname “Masipa” means great reputation for fairness,
but
its pronunciation in the Sesotho language may cause embarrassment as
it may sound like “masepa” which means excretion.
Some
surnames from Netherland’s descent are swear-words in the
Afrikaans language. A good case may be made out
for an
appropriate amendment by someone that really feels embarrassed by the
surname “inherited”, but as said, that
is the domain of
the Director General.
[33]
Mr Khoko incorrectly referred me to the
Identification Act, 16 of
1997
. He probably did this insofar as the respondents’
deponent also incorrectly relies on this (wrong) Act for the stance
taken that applicant is not entitled to have his forename and surname
altered. There is no such Act. The reference should
be to the
Identification Act, 68 of 1997
. I could not find any provision
of the sort relied upon by them in this Act. They are confused
insofar as the regulations
issued in terms of the
Births and Deaths
Registration Act, 51 of 1992
and
regulation 18
in particular apply.
Mr Khoko’s reliance on
Amed
[12]
is without substance insofar as it does not have any relevance to the
present dispute. That case dealt with asylum seekers
and their
right to apply for visas and immigration permits under the
Immigration Act.
[13]
[34]
In light of the evidence presented to me as well as the concessions
during argument I am of the view that it would be fair
and in the
interest of justice if the application is not dismissed, but the
Director General be directed to consider applicant’s
applications relating to the alteration of his forename and surname
in terms of sections 24 and 26 of the Act. I do not agree
with
Mr Khoko that such order will undermine the powers conferred on the
Director General who has obviously not even considered
any of
applicant’s applications, contrary to the explicit wording of s
26(2), but a junior official. I want to emphasise
that such
order cannot and does not have the effect of prescribing to the
Director General how he/she should exercise his/her discretion.
The furthest I am prepare to venture is to hold that a flexible
approach should be followed and that the rigid provisions of
regulation
18 appear to be unconstitutional as found by Bozalek J.
This has been conceded by respondents’ counsel.
XII
CONCLUSION
[35]
I conclude by stating that the manner in which the orders are to be
structured is fair to both parties and that an equitable
outcome will
ensue. The Director General has 60 (sixty) days to consider
applicant’s new applications in terms of sections
24 and 26
(which I have been informed had been delivered immediately after
judgment was reserved.) Reasons should be provided
for the
decisions and upon receipt thereof, the matter may be enrolled for
further hearing once supplementary affidavits have been
filed.
If the applications are granted by the Director General, that will be
the end of the matter; otherwise applicant will
have the right to ask
for the review, setting aside and substitution of such decisions.
XIII
ORDERS
[36]
Consequently the following orders are made:
1.
The second respondent shall, within 60 (sixty)
days from date of this order, consider the applicant’s
submissions in terms
of sections 24 and 26(2) of the Births and
Deaths Registration Act, 51 of 1992 (“the Act”) as set
out in the completed
prescribed application forms as well as in his
founding, supplementary and replying affidavits under this case
number, for assuming
of the forename “
Senzo”
and the surname “
Mavumegwane”;
2.
The second respondent shall communicate his/her
decision and the reasons for such decision, relating to the
applicant’s applications
in terms of section 24 and 26(2) of
the Act, to the legal representatives of the applicant within 5
(five) days from the date of
the decision;
3.
The parties are granted leave to supplement their
respective affidavits within 21 (twenty-one) days from the date on
which the decision
of the second respondent is communicated to the
parties, if required;
4.
The applicant is granted leave to enrol the
matter accordingly, on the same papers duly supplemented in
accordance with paragraph
3 hereof, for supplementary and/or
ancillary relief, such relief to include the review, setting aside
and substitution of second
respondent’s decision.
5.
Each party to pay their own costs.
_______________
J
P DAFFUE, J
On
behalf of Applicant: Adv JS Rautenbach
Instructed
by: Hill McHardy & Herbst Inc
BLOEMFONTEIN
On
behalf of Respondents: Adv ND Khokho
Instructed
by: State Attorney
BLOEMFONTEIN
[1]
51 of 1992
[2]
It is Act 68 of 1997
[3]
S 7(2) of
the Act
[4]
S 24 of the
Act
[5]
[2016] 3
All SA 945 (WCC)
[6]
(107/2018)
[2019] ZASCA 100
(8 July 2019) at paras 17 – 29 and
17, 27 & 29 in particular
[7]
In Hattingh
& others v Juta 2013(3) SA 275 (CC) para 63
[8]
At para 29
[9]
Baxter,
Administrative Law, 690 quoted with approval in Transnet Bpk v
Voorsitter, Nasionale Vervoerkommissie 1995 (3) SA 844
(TPD) 847F
[10]
Quoted
above
[11]
International Trade Administration Commission v SCAW SA 2012(4) SA
618 (CC) paras 91 - 93
[12]
Amed &
others v Minister of Home Affairs 2018(12) BCLR 1451 (CC)
[13]
13 of 2002