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[2016] ZAGPPHC 470
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Breytenbecht N.O. and Another v Minister of Home Affairs (50365.2014) [2016] ZAGPPHC 470 (27 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
CASE
NO: 50365/14
DATE:
27 MAY 2016
In the matter
between:-
NICOLE
BREYTENBACH
N.O
.
080
NICOLAS
LWAZI
MSOMI
APPLICANT
and
MINISTER
OF HOME AFFAIRS
1ST RESPONDENT
DIRECTOR-GENERAL
OF HOME AFFAIRS
2ND
RESPONDENT
GODA HLOMBE
MSOMI
3RD
RESPONDENT
CONSTANCE
MUTALE
4TH RESPONDENT
JUDGMENT
A.
APPLICATION
1. This
application has been launched by the curator
ad litem
on
behalf of the minor child, Nicolas Lwazi Msomi (Nicolas). This
application seeks
inter
alia
that Nicolas be
declared a citizen of South Africa in terms of
s 2(1)(b)
of the
South
African Citizenship Act 88 of 1995
.
For the purposes
of this application the first and second respondents would be
referred to as Department of Home Affairs (DHA).
Issues
2. The issue is
crisp and this court must determine if the minor child Nicolas Lwazi
Msomi is entitled to be declared a citizen
of South Africa.
B.BACKG
ROU N D
•
Curator
ad /item
3.
Ms. Breytenbach, the applicant in this matter was specifically
appointed for the purpose of seeking legal relief on the minor
child's
behalf of enforcement of his legal rights regarding his right
to South African citizenship.At the hearing the curator
ad litem
had made it clear, that she is representing the minor child
only.At no stage would she be representing the parents.
4.
Nicolas was born on 31 August 2002. His parents are Ms. Mutale
(a Zambian citizen), the fourth respondent and Mr. Msomi, the third
respondent. The fourth respondent approached the Centre for Child Law
(CCL) for assistance concerning Nicolas' birth registration.
5.
Nicolas had been issued with a birth certificate which was
later blocked in 2010 due to the decision under case no: 36457/2008 -
Constance Mutale
v Minister of Home
Affairs
(heard in the South Gauteng High Court). The
Department of Home Affairs (DHA) relied on the judgment, where the
court made a finding
that Ms. Mutale had failed to prove that her
children were born in South Africa. Furthermore the birth certificate
was accepted
as proof of the minor child's birth as the Department
could not find proof of any registration of birth on its records.
6.
Prior to this hearing of the aforesaid matter, it should be
noted the DHA had issued the abridged birth certificate on 22 August
2006 and on 9 June 2008 and a copy of the unabridged birth
certificate on 10 November 2008.
Res
judicata
7.
Counsel for the first and second respondents raised the point
of
res
judicata,
on the basis that the issue
before court had already been dealt with by aprevious competent
court on the same facts, same issues
and the same parties were
before court.
8.
In a defence of
res judicata,
it is settled law that
the party raising it should demonstrate that:
•
There
has been a prior judgment by a competent court;
•
Where
the parties are the same;
•
The
issues of dispute are the same.
9.
This
court having considered the aforesaid judgment which has been annexed
to the papers, finds that this defence cannot succeed
on the
following basis:
9.1 The parties
in the 2008 matter are not the same as in this matter. In the 2008
matter, the matter was between Mrs. Mutale and
the Minister of Home
Affairs as well as certain officials of the DHA.
9.2 The relief
sought is not the same. This matter involves the applicant seeking
an order for the minor child to be declared
a citizen in terms of
section 2(1)(b) of the Citizenship Act. In the 2008 matter Ms.
Mutale sought a resident's visa for herself
based on the averment
that her children were born in South Africa.
9.3 The cause of
action is not the same. This matter concerns the issue of Nicolas'
citizenship whereas the 2008 matter applied
concerned Ms. Mutale's
application for resident visa.
10.
This
court however does recognise that the issue of the birth of the
minor children was canvassed in this application. This
particular
aspect had to be considered by that Court in respect of Ms.
Mutale's resident status.
The court
identified the dispute therein in paragraph 1:
"she
considers herself to be entitled a 'relative permit' to remain in
South Africa on the grounds of being the mother of the
two children
in terms of
section 27
of the
Immigration Act No. 13 of 2002
".
11.
The
court made a decision in respect of her status on the basis that
there was no acceptable explanation why the births were not
registered when the children were born nor why their alleged father
(Godan Msomi) under whose surname the children were registered,
did
not sign the registration forms and acknowledge his parenthood.
C.
THIS
APPLICATION:
12.
Counsel for the applicant argued that the court in determining
this matter must bear in mind that in the 2008 matter, Ms. Mutale
had
not mustered sufficient evidence before the court. Certain of the
documents not before court at the time, particularly confirmation
from the Tembisa Hospital thatNicolas was indeed born in South Africa
as well as the maintenance order which identifies Mr. Msomi
is the
father.
13.
Despite the DHA stating that the records of Nicolas' birth
registration could not be located, they proffer no explanation to the
effect that it was fraudulently or incorrectly issued.
14.
Furthermore
the CCL contacted the DHA as far back as 2010, requesting their
assistance. Prior to the curator
ad litem
being appointed, in
order to resolve the matter and gain clarity on Nicolas' status. The
DHA has failed to respond and have given
no reasons why Nicolas
should not be entitled to citizenship but just relying on the 2008
matter.
15.
Ms.
Breytenbach upon her appointment being confirmed, consulted with
Nicolas on 30 April 2014 and established that the main concern
of the
minor child was his academic career. In not having a valid identity
document, his registration at school as well as any
extra murial
activities he intends undertaking is being compromised.
In fact it is
common knowledge that it would become a problem,as an identity
document is always a primary requirement, which every
institution
would require.
16.
Counsel for the application further submitted that the
non-identification status of minor children is risky as they are
prone to
become victims to human trafficking and even deportation as
he had previously been subjected to.
17.
What
has become evident, is that the father, third respondent has shown no
interest in this matter. However his details appear on
the unabridged
certificate, the maintenance order and the fact that he has accepted
service of all the relevant application papers.
18.
His non-participation has been noted in the previous
proceedings, in this matter and generally in Nicolas' life. However
the question
which begs an answer is does it preclude Nicolas from
obtaining citizenship on the basis of Section 2(1)(b) of the
Citizenship
Act?
19.
Section 2(1)(b) of the Citizenship Act provides that
"Any
person who is born in or outside the Republic, one of his or her
parents, at the time of his or
her birth, being
a
South African citizen, shall be
a
South African citizen by
birth."
20.
What
has never been contested is the fact that Mr. Msomi is not a South
African citizen. Counsel for the applicant demonstrated
that his
identity number [77…] reflects that he is a South African
citizen.
21.
Furthermore
the confirmation from the Tembisa Hospital that a male child was born
to Ms. Mutale on 31 August 2002, has not been
challenged and neither
was it before the court in the 2008 matter.
22.
Ms. Seboko questioned whether the maintenance order related to
Nicolas as the child identified therein was "Lawasi". Mr.
Msomi in respect of the maintenance order was required to pay
maintenance for a minor child. The issue was raised that there could
have been an incorrect spelling "LAWASI" should be "LWASI".
However in the court's view it does not take the
matter any further.
23.
What
is of concern to the court, is the manner in which the DHA has dealt
with this matter. Despite seeking their assistance they
have failed
to respond to CCL.
24.
This uncertainty has caused unnecessary difficulties in
Nicolas' life. He cannot be denied access to education and other
necessary
amenities which every boy his age enjoys.
25.
Counsel for the DHA, Ms. Seboko requested this court to
instead order an investigation to be conducted into the circumstances
and
the general well-being of the minor. She motivated this argument
particularly in light of the parents' behaviour. From the papers
it
appears that Nicolas was not being cared for by either parents, hence
his deportation at one stage.
26.
Furthermore for the court to blindly confirm his citizenship
without verifying the aforesaid, will lead to the mother abusing her
status rights on the basis of her son's citizenship.
27.
It was also contended that the curator
ad /item
had not
made the necessary enquiries as per her appointment and the court
order of Tuchten J. Ms. Breytenback had addressed the
Court that she
had indeed followed up on her tasks in terms of the order. The court
finds that Ms. Breytenbach's mandate was specific
and there was no
obligation to investigate the living circumstances of the minor and
the basis of his deportation.
28.
This
court as the upper guardian of minor children is obliged to consider
what is in their best interests always and which is in
accordance
with Section 28(2) of the Constitution.Goldstone J in
Minister
of Welfare and
Population
Development v Fitzpatrick and others
[2000] ZACC 6
;
2000 (3) SA 422
at para 17
stated "Section 28(2) requires that a child's best
interests have paramount importance in every matter concerning the
child."
29.
Ms. Mutale was present at the hearing and informed the court
that the minor children are living with her and that they are cared
for by her. The father, the third respondent lives in Delmas.
30.
Counsel
for the applicant and Ms. Breytenbach further informed the court that
the CCL had attempted to make contact with him. He
spoke to them on
one occasion where he requested that he wants his children. At no
point did he deny paternity to Nicholas.
31.
The issue before the court concerns Nicolas' right to
citizenship.
32.
Section
28 of the South African Constitution stipulates that every child has
a right to a name and nationality from birth and our
authorities have
confirmed this.
33.
In
Hadebe v Minister of Home Affairs, 2006 JDR 1071 D
at
para
14
the court recognised the DHA duty to ensure the
registration of births on their part and stated:
"It is clear
that if a child has, as is provided in S28(1)(a)
of
the Constitution, the "right
to
a name
from
birth",
the official of the state who is charged with doing those things that
enable is or her name to be recorded must have
a correlative duty to
facilitate the registration of that name in the records of the state:
certainly it is not part
of
the
function of the official
to
place
technical difficulties in the way of such registration."
34.
In the premises, by virtue of the Citizenship Act 88 of 1995,
Nicolas does qualify for South African citizenship by virtue of his
father being a South African citizen.
35.
There appears no dispute on whether the third respondent is
the father and whether he is indeed a South African citizen Further
this court recognises that the minor child has a basic right to
education, which is being compromised by his status not being
established
by the DHA.
D.
C
ONCLUSION:
36.
This
court thus finds that Nicolas is entitled to his citizenship rights
on the strength of his father being a South African citizen.
37.
As
already alluded to above, there has not been any evidence in the
papers challenging the third respondent's citizenship. The court
acknowledges that the third respondent's input is crucial for Nicolas
obtaining his legal status as a citizen of South Africa and
will make
provision therefore.
38.
Furthermore, the DHA has failed to show that Nicolas' birth
certificate was issued unlawfully or fraudulently. The only inference
that can be drawn is that the birth certificate is valid.
E.COSTS:
39.
Both
parties conceded that the principle in the
Biowatch Trust v
Registrar Genetic Resources and Others 2009 (6)SA 237
(CC)
which protects ordinary litigants in constitutional
matters.
40.
However in this instance, this principle is not applicable and
does not find application here. The general rule that the successful
party is entitled to the costs stand.
F. ORDER
41.
In
the premises I make the following order:
1. NICOLAS LWAZI
MSOMI ("the minor child") is declared to be a citizen of
the Republic of South Africa in terms of the
provisions of Section
2(1)(b) read with
Section 2(2)(b)
of the
South African Citizenship
Act 88 of 1995
;
2. The First and
Second Respondents are ordered to register the minor child's birth in
the population register under their control
and administration and
proceed to issue him with a birth certificate within THIRTY (30) days
from date of this order;
3. The Fourth and
Third Respondents are ordered to facilitate the completion of the
registration of birth of the minor child and
all matters incidental
thereto;
4. The Third
Respondent is ordered to furnish a copy of his identity document
within FIFTEEN (15) days of this order to the Centre
for Child Law;
5.
The First and Second Respondents are ordered to pay the costs of this
application, including all costs in respect of the curator
ad
litem.
H
K Kooverjie
Acting
Judge of the High Court
Centre
for Child Law: Adv Skelton together with Adv.Breytenbach
First and
second respondent's attorney: State Attorney,
Pretoria
First and
second respondent's counsel: Ms.
Seboko
Date of
hearing: 20 May
2016
Date of
judgment: 27 May
2016