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[2014] ZAFSHC 159
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D v D and Another (1751/2014) [2014] ZAFSHC 159 (11 September 2014)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 1751/2014
In
the matter between:
L[…]
N[…] D[…]
…..................................................................................................................
Applicant
and
D[…]
D[…]
….................................................................................................................
First
Respondent
DIRECTOR
GENERAL HOME AFFAIRS
…........................................................
Second
Respondent
HEARD
ON:
31 AUGUST 2014
JUDGMENT
BY:
E.K. TSATSI, AJ
DELIVERED
ON:
11 SEPTEMBER 2014
[1]
This is an opposed application for a mandatory order in which the
applicant asked the court to issue authorisation to direct
the second
respondent to consider altering the surname of the minor child,
L[…]-D[…] D[…], to that of the
applicant,
without the prescribed consent of the first respondent, as envisaged
in terms of
section 25(2)
of the
Births and Deaths Registration Act,
51 of 1992
.
[2]
The applicant asked the court to order the first respondent to sign
any documentation that the second respondent may require
for the
issuing of a passport of a minor child.
[3]
Should the first respondent not abide by the order as set forth in
paragraph [2] above, then and in that event the applicant
asked the
court to order the sheriff of the court, with jurisdiction, to sign
all such documentation on behalf of the first respondent.
3.1
The applicant also asked the court to order the first respondent to
pay the costs of this application, save in the event that
the second
respondent may elect to oppose same, then and in that event a cost
order be sought against both respondents jointly
and severally the
one paying the other to be absolved.
3.2
The second respondent did not oppose this application.
FACTS
[4]
The applicant, L[…] N[…] D[…], met with the
first respondent, D[…] D[…], during the 2010
soccer
world cup. They had a romantic relationship. Out of this
union a daughter named L[…]-D[…] D[…]
was born
on 5 November 2011. The parties lived together in a
cohabitation relationship. The relationship between the
applicant and the first respondent ended on 21 May 2013. There
has been problems of communication between the parties ever
since the
parties broke up.
[5]
The applicant has custody and care of the minor child. What
really prompted the applicant to approach the court about
the
application in question is the fact that she experienced problems
whenever she wanted to travel with the minor child, locally
or
abroad. The problem was related to the fact that the minor child’s
surname is similar to that of the first respondent
and differed from
that of the applicant.
[6]
The applicant asked the first respondent on numerous occasions to
give his consent to have the minor child’s surname changed
from
D[…] to D[…]. As a result, an incident happened
where the applicant was supposed to travel with the minor
child to
the United Kingdom from 13 April to 2 May 2014, and the trip did not
materialise. The minor child was supposed to
get a passport.
The minor child could only get a passport if the first respondent
cooperated in giving his consent.
This consent could be either
by signing the necessary papers for applying for the passport for the
minor child or assisted in having
the minor child’s surname
changed.
[7]
The applicant cancelled the minor child’s air ticket due to the
fact that the first respondent refused to cooperate by
signing the
passport papers. An amount of 531 British pounds was forfeited,
as a result. Apart from the problem with this
particular incident,
the applicant experienced the following difficulties, because of the
first respondent’s refusal to sign
the papers:
7.1
When she wanted to enlist and registered the minor child in a
pre-primary school. It was alleged that it was a prerequisite
of such schools that both parents gave consent to the pre-primary
school to register the child. Time is of essence, as most of
the
pre-primary schools already have a nine months waiting list for 2015.
The applicant had to register the minor child as soon
as possible.
7.2
Boarding on local flights with the minor child was cumbersome for the
applicant due to the problem of different surnames. This
included
opening of bank accounts in the minor child’s name and
submitting medical aid forms.
[8]
There are allegations of drug and alcohol abuse against the first
respondent by the applicant. The applicant alleged that prior
to
L[…]-D[…]’s birth the first respondent agreed
that L[…]-D[…]’s surname would be D[…]-D[…].
[9]
It was the applicant’s contention that the first respondent
displayed very little or no interest in the welfare of the
minor
child. For example, on 27 March 2014 the first respondent
showed up at the applicant’s place unannounced at the
time when
the minor child was already asleep. The reason for the
applicant to have the minor child accompanied her to the
United
Kingdom was for the child to meet with the applicant’s family
members who live in the United Kingdom. It is
the applicant’s
concern that the first respondent denied the minor child this
opportunity of bonding and knowing the said
family members in the
United Kingdom. The applicant expected the first respondent to
reimburse her for the cancelled air
ticket of the minor child to the
United Kingdom. The first respondent ignored the applicant’s
request to reimburse
her for the cancelled air ticket that she bought
for the minor child.
[10]
At birth of their minor child, the first respondent suggested to the
applicant that they made L[…]-D[…]’s
surname a
double-barrelled surname. This meant that the minor child’s
surname would contain both the applicant’s and
the first
respondent’s surnames. The applicant refused and told the
first respondent that she did not mind if their
minor child had the
first respondent’s surname only. As a result, the first
respondent was not willing to change his
minor child’s surname
or even amended it to a double-barrelled surname.
10.1
The first respondent denied allegations of drug and alcohol abuse
against him. According to the first respondent it is
not
correct that they both agreed that L[…]-D[…]’s
surname would be changed to D[…]-D[…].
The
correct fact was that the parties agreed that L[…]-D[…]’s
surname would be that of the first respondent’s
only. A
good relationship still existed between the applicant and the first
respondent. The first respondent loves
his child dearly,
despite the fact that the applicant accused the first respondent of
showing no or little interest in the minor
child’s welfare.
To show that the first respondent has interest in the child, on 27
March 2014, the date on which the
applicant alleged that the first
respondent showed up, unannounced, the applicant, first respondent
and the minor child all had
supper together. The first
respondent and the applicant bathed their minor child together.
Some of the reasons why
the first respondent refused to assist the
applicant in signing forms for the minor child’s passport was
because the first
respondent feared that the applicant may immigrate
to the United Kingdom with the minor child. This fact was not
baseless
as this meant that the first respondent may never see his
minor child again. The other concern that the first respondent
had, was that he was informed that the applicant had a boyfriend in
the United Kingdom.
[11]
The first respondent did not believe that the applicant actually
bought the air ticket for the minor child. The reason
being,
that the applicant refused to provide the first respondent with a
copy of the air ticket. This would have enabled
the first
respondent to reimburse the applicant for the cancelled air ticket.
Finally, the first respondent agreed to the
signing of the documents
for the passport to be issued for the minor child, on condition that:
firstly, that the applicant allowed
the first respondent to take the
minor child with him to Port Elizabeth to visit his mother.
Secondly, that the first respondent
wanted the applicant to inform
him where they were going to stay and who they were going to stay
with in the United Kingdom.
However, it was already late for
the papers to be signed as the first respondent missed the deadline.
ISSUES
[12]
The main issue in this application is whether or not this court can
authorise and direct the second respondent to consider
the alteration
of the surname of the minor child, L[…]-D[…] D[…],
without the prescribed consent of the first
respondent as envisaged
in terms of
section 25(c)
of the
Births and Deaths Registration Act,
Act
51 of 1992.
SUBMISSIONS
[13]
It was submitted on behalf of the applicant that it will be in the
best interest of the minor child to have her surname altered
without
the father’s statutory consent. The reason being, that
the father was being unreasonable in withholding his
consent.
Counsel for the applicant further argued that, the paramountcy of the
best interest standard relating to minor children
is firmly
established in international law. Section 28(2) of the
Constitution provides that a child’s best interest
is of
paramount importance in every matter concerning the child.
[14]
In
Van Deijl v Van Deijl
1966 (4) SA 260
(R) at 261H the court said the interest of the minor
child as meaning the welfare of the minor child. Welfare in its
widest
sense include economic, social, moral and religious
considerations.
[15]
Counsel for the first respondent argued that the best interest of the
child is of paramount importance as envisaged in section
28(2) of the
Constitution. However, he submitted that the best interest of
the minor child will be better served if the applicant
ensured that
there was independent legal assistance for the minor child in terms
of section 28(1) (h) of the Constitution.
This legal assistance
should be a curator who will be able to represent the interests of
the minor child – (see
Legal
Aid Board v R and Another
2009 (2)
SA 262
(D)).
[16]
Counsel for the first respondent argued that whenever factual
disputes existed in an application where a final relief
was sought,
the version of the first respondent should be accepted as the truth
if that version was not on face value untenable
or false –
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A).
16.1
It was submitted on behalf of the applicant that a costs order be
issued against the first respondent. Counsel
for the first
respondent argued that the application be dismissed with costs.
THE
LAW
[17]
Section 25(c)
of the
Births and Deaths Registration Act, 51 of 1992
provides that:
“
25
Alteration of surname of minor
(1) When-
(c)
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;
(d)
…
..
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…..
(2) Any parent of a
minor whose birth has been included under a specific surname in the
population register, may on the strength
of a reason not mentioned in
subsection (1), apply in the prescribed manner to the
Director-General for the alteration of the surname
of the minor under
which his or her birth was registered, and the Director-General may,
on submission of a good and sufficient
reason given for the
contemplated alteration of the surname, alter the said original
surname accordingly in the prescribed manner.
(3)
For the purpose of this section 'guardian' includes any person who
has in law or in fact the custody or control of a minor.”
[18]
Section 21
of the Children’s Act provides that an unmarried
biological father has automatic parental rights and responsibilities,
if
he was living with a mother in a permanent life-partnership at the
time of the child’s birth and consents to be identified
as a
father. If the unmarried father was living in a cohabitation
relationship with the mother of the child, he will have
an inherent
right of contact, care and guardianship
(section 18
of the Children’s
Act). At common law a mother of a child born out of wedlock has
full custody, guardianship and parental
authority (Clark B (ed)
Family Law Service
1988 with loose leaf updates; Butterworths Durban). The father
of a child born out of wedlock does not have an inherent right
of
guardianship over his minor child – Sinclair JD assisted by
Heaton J:
The Law of Marriage
Vol 1 (1996) Juta Cape Town): Unless there is an application to
the High Court in terms of section (2) (1) of the Natural
Fathers
Born out of Wedlock Act by the father of a child born out of wedlock,
the mother of the child remains the sole guardian
and custodian of
the child. The Guardianship Act does not affect the common law
position regarding the mother’s position
of sole guardianship
and custody – Clark
Family Law
Service
, E32 –
supra
.
APPLICATION
OF THE LAW TO THE CASE
[19]
Based on section 25(1) (c), the applicant asked the court to grant
exemption from the first respondent’s consent in altering
the
minor child’s surname. In addition the applicant asked the
court to authorize and direct the second respondent to consider
changing the surname of the minor child. According to section 25 (d)
and (2) the applicant may apply to the Director General directly
for
the alteration of the minor child’s surname to that
of the applicant. However the first respondent’s
consent may
still be needed in this regard.
[20]
Even though the court was to direct and authorize the second
respondent to consider altering the surname of the minor child
to
that of the applicant without the prescribed consent of the first
respondent, the problem will not be completely solved. The
applicant
will still need the first respondent’s consent in future. This
consent would be needed in issues that affected
the minor child, like
travelling locally or abroad and or to be registered in a school. The
list is not exhaustive. I am
of view that even though the
problem will not be resolved completely, altering the minor child’s
surname may alleviate some
of the problems that the applicant
experienced before. The applicant will be able to perform day to day
tasks that affected the
minor child’s life without necessarily
having to ask for the first respondent’s consent. For example,
opening a bank
account for the minor child, signing of the medical
forms.
[21]
It is important that in the minor child’s best interest the
father cooperated in signing the documents that the second
respondent
may require for the issuing of the minor child’s passport.
The issuing of a passport for the minor child
will alleviate most of
the problems the applicant experienced when travelling with the minor
child – section 28(2) of the
Constitution.
[22]
In light of the preceding and based on the law discussed the
first respondent has inherent right of contact, care
and
guardianship as contemplated in sections 18 and 21 of the Children’s
Act. Therefore the Act supersedes common law.
22.1
The first respondent’s concern that the applicant may emigrate
with the minor child abroad was not unfounded. I
am mindful of
the fact. However, the applicant cannot emigrate with the minor
child without the first respondent’s
knowledge. The first
respondent’s consent will be needed in signing documents
regarding emigration. The first
respondent will still decide
whether or not he was willing to sign such documents.
[23]
Based on the evidence placed before me and submissions made in court,
I am of the view that the first respondent was unreasonable
in
withholding his consent which was needed in signing documents for the
minor child to be issued with a passport. In addition
the first
respondent was also unreasonable in withholding his consent when he
was supposed to assist the applicant in complying
with her parental
obligations like registering the minor child in pre- primary school.
The applicant had no choice but to ask for
the court’s
intervention.
[24]
Accordingly the following order is made:
24.1
The second respondent is authorized and directed to consider altering
the surname of the minor child, L[…]-D[…]
D[…],
to that of the applicant without the prescribed consent of the first
respondent as envisaged in terms of
section 25
(2) of the
Births and Deaths Registration Act 51, 51
of 1992.
24.2
The first respondent is ordered to sign any documents that the second
respondent (Department of Home Affairs) may require for
the issuing
of a passport to the minor child L[…]-D[…] and to do
all any such other acts as may be necessary to give
effect to the
issuing of the passport and visa to the minor child L[…]-D[…]
within 14 (fourteen) days after service
of this order upon him.
24.3
Should the first respondent not abide by the order set forth in
paragraph 24.2 above, then and in that event the Registrar
of the
Honourable Court with jurisdiction is authorised and directed to sign
all such documentation on the first respondent’s
behalf.
24.4
The first respondent is ordered to pay the costs of this application.
______________
E.K.
TSATSI, AJ
On
behalf of the applicant: Adv S. Tsangarakis
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv J.L. Olivier
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN