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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER 12111/24
In the matter between
J[...] V[...] R[...] APPLICANT
and
THE DIRECTOR GENERAL OF HOME AFFAIRS FIRST RESPONDENT
THE MINISTER OF HOME AFFAIRS SECOND RESPONDENT
NATHAN DEMINK
MANAGER: LATE BIRTH REGISTRATIONS THIRD RESPONDENT
JUDGMENT
Date of hearing: 11 February 2025
Date of judgment: 19 February 2025
BHOOPCHAND AJ:
1. The Applicant attained his majority before being called upon to prove his birth,
and that was only because he needed to reap a substantial award for damages
arising from an accident he was involved in on 18 December 2015. He had
complete d his primary school education and progressed in high school. The
Applicant had evaded the need for an identity document since 17 January 2005, the
date of his birth. With the Road Accident Fund (“RAF”) refusing to release his award
until he produced his b irth certificate, the pressure turned on the Department of
Home Affairs (“DHE”) to take notice of his birth and issue the birth certificate.
2. The RAF’s award on 16 November 2023 was recoupable six months later.
The Applicant gave notice of his birth to the DHA, Bellville, on 29 November 2023.
The DHA initiated the process of registering his birth, which is regulated by the Births
and Deaths Registration Act 51 of 1992 and the Regulations on the Registration of
Births and Deaths, 2014.1
3. The Applicant acknowledged that there are necessary steps to follow before
one can be issued with an identity document. The Applicant’s father followed up on
the Applicant’s application on 1 December 2023, 15 January 2024, and 31 January
2024. The father attended the DH A offices in February and March 2024 as well. In
April 2024, the father travelled to Leratong Hospital in Randburg to request proof of
the Applicant’s birth. Leratong Hospital advised the father that the Applicant’s birth
records were destroyed but issued a maternity certificate confirming the Applicant’s
birth. The maternity certificate was handed to the DHA on 30 April 2024. The
Applicant instituted an application to order the Respondents to consider his
application and provide him with a birth certificat e on 23 May 2024. The application
was set down for hearing on the unopposed roll of 14 June 2024.
4. This Court is assigned to determine the costs relating to the application to
compel the Respondents to provide the Applicant with a birth certificate. The
Honourable Justice Fortuin ordered the Respondents to determine whether the
Applicant is entitled to a birth certificate. If the determination was favourable to the
1 Regulation 128 in Government Gazette, 26 February 2014
Applicant, the Respondents had to allocate an identity number and provide the
Applicant wi th a birth certificate. The application was postponed for hearing in the
Third division on 18 September 2024 to enable the Respondents to comply with the
order. It was common cause that the DHA had received the Applicant’s notice of late
birth registration and was processing it. The Applicant instituted the application soon
after providing the DHA with the maternal certificate. The verification of the certificate
followed days after the institution o f the application. The Applicant received his birth
certificate on 13 August 2024.
5. On 3 September 2024, the Respondents requested the Applicant to remove
the matter from the roll of 18 September 2024. On 5 September 2024, the Applicant
informed the Res pondents that they intended to seek a costs order and requested
that the Respondents tender their party and party costs with Counsel’s fees to be
taxed or agreed on scale B. On 6 September, the Respondents replied that costs
had already been granted on 14 June 2024, and the Applicant was unfairly
requesting further costs. The Applicant responded on the same date that he had
incurred further costs, and if the Respondent preferred to argue costs, it would
appoint a more experienced Counsel and seek Counsel’s costs on scale C. On 13
September 2024, the Respondents tendered the Applicant’s costs up to 13 June
2024 and no further.2
6. On 18 September 2024, the Honourable Justice Lekhuleni granted an order
by agreement, postponing the hearing on costs to the semi -urgent roll on 11
February 2025 and directed the further filing of affidavits and heads of argument.
The Respondents filed their answering affidavit. The Applicant replied, and both
parties provided heads of argument.
THE RESPONDENTS SUBMISSIONS
7. The Respondents outlined the pressures on the Bellville office of the DHA and
the process involved in the late registrations of births (“LRB”). The office receives
fifteen late notices of births daily. They have 2000 active LRB applications. The office
2 The commun ication read “…until before 14 June 2024”
prioritises certain applications: those for children who are to be placed in foster care,
for impending deaths and medical reasons, children up for adoption, child grant
applicants, and children in grade 1 2 who need to register for the matric examinations.
8. The verification process, which authenticates information provided by an
applicant's documents, is geared towards preventing fraudulent birth registration.
The DHA has established a screening committe e to interview all persons who give or
support notices of birth. The screening committee recommends whether the Director
General approves or rejects a notice of birth. The screening committee acts ad hoc
depending on the priority, number of applications, a nd availability of its Chair, the
DHA’s Western Cape Provincial Manager. The verification of information, which
includes scrutinising the applicant’s factual background and fingerprints, must occur
before the screening committee conducts its interviews.
9. When the Applicant’s birth notice was received, the DHA established that the
Applicant’s sister was also unregistered. The Applicant’s father was advised that he
had to submit an LRB notice for his daughter, which he undertook to do. The
Applicant had no t submitted a proof of birth form with his application. He submitted a
maternity certificate dated 17 November 2023. The DHA asked Leratong Hospital in
Randburg, where the Applicant was born, to verify the maternity certificate. The
deponent to the answeri ng affidavit, Ms Clarence, alleged that in her experience, the
verification of birth records is not ranked high on a hospital’s list of priorities. Delays
ensue when the hospital or medical facility is in another province. The hospitals are
concerned that disclosing a person’s personal information may contravene the
Protection of Personal Information Act 4 of 2013.
10. The DHA was awaiting the verification of the birth records in February 2024.
On 30 April 2024, the DHA requested assistance from an official at their Randburg
office to approach Leratong Hospital to request the verification, presumably after it
had rec eived the certificate obtained by the Applicant’s father. The verification was
not forthcoming. On 30 May 2024, they received the verification. The Applicant had
also provided the incorrect school letter. The school letter was from the Applicant’s
high s chool, not the primary school. The school letter aims to establish the child’s
pattern of movement, which the DHA verifies with the relevant school and the
Department of Education. The DHA tried to contact the father to no avail in
December 2023. The fathe r was informed of the requirement when he attended the
DHA’s offices on 16 January 2024. He produced the correct letter on 1 February
2024. The letter was dated 19 January 2024. The primary school provided the further
information the DHA required on 23 Feb ruary 2024.
11. There were also problems with the legibility of the Applicant’s fingerprints,
which had to be retaken. The DHA experienced problems contacting the Applicant’s
father to redo the Applicant’s fingerprints. There was a delay between February and
the end of April before contact was made. The Applicant’s fingerprints were retaken
on 3 June 2024. The outcome of the fingerprint verification was received on 5 August
2024.
12. The Applicant’s father submitted the LRB verification application for hi s
daughter on 3 June 2024. Although her application was also incomplete, the DHA
commenced the verification process since they intended to place both applications
before the screening committee to avoid duplication. The sister’s fingerprints were
taken on 10 June 2024.
13. The screening committee was scheduled to sit on 6 June 2024 to conduct
interviews. Ms Clarence called the Applicant’s father to arrange for him, the
Applicant, and the daughter to attend the Bellville offices on 6 June 2024 to appear
before the screening committee. The father did not answer his phone. Ms Clarence
left a message for him on his voicemail. The intention was to conduct the interviews
while awaiting the fingerprint verification's outcome. The father attended the Bellville
offices during the week of 10 June 2024. Special permission was obtained for the
screening committee to sit on 25 July 2024 to adjudicate the Applicant’s and the
daughter’s applications. Although the father was informed of the special arrangement,
they did n ot attend. The father informed Ms Clarence that he missed her email and
the daughter was unavailable. The interview eventually occurred on 1 August 2024,
and the screening committee made its recommendations. The committee was
specially convened to adjudica te the Applicant’s LRB application. The fingerprint
verification was obtained on 5 August 2024, and the Applicant’s birth certificate was
issued on 12 August 2024.
THE APPLICANT’S SUBMISSIONS
14. In his reply, the Applicant raised a point in limine , alleging that Fortuin J
decided the merits in the Applicant’s favour on 14 June 2024. The Applicant alleged
that the Respondents understood the effect of the order to mean the same. He
referred to the State Attorney’s letter addressed to the Applicant’s attor ney on 7
September 2024. The Applicant relied on the agreed order granted by Lekhuleni J
that the matter was postponed to determine its costs. The Applicant submitted that
the Respondents could not belatedly make submissions that this application had no
basis in fact or law as the answering affidavit seeks to do.
15. The Applicant also applied to strike out certain paragraphs of the answering
affidavit. The Applicant referred the Court to paragraphs of the answering affidavit
that sought to establish that the Applicant had not made out a case for the relief
sought and asked that they be struck out.
16. The Applicant sought costs on an opposed basis, including, but not limited to,
the opposed Court appearances on 14 June 2024 and 18 September 2024.
Applican t sought the fees of his Counsel, including but not limited to the day fees of
14 June 2024 and 18 September 2024 on scale B. The Applicant also sought the
costs of this hearing, Counsel’s day fees and the costs of preparing written heads of
argument on sc ale C. The Applicant emphasised that the issues for determination by
this Court are not limited to the costs of instituting the application but also include all
other costs related to the application.
17. The Applicant denied that the provisions of the POPI Act could contribute to
delays in this matter as the personal information concerned was sought directly at
the request of the data subject. He submitted that neither he nor his father can be
blamed for the fingerprints that were incorrectly taken. The Applicant submitted that
the State Attorney knew that his attorneys had been representing him since 27 May
2024, the day the application was served on them. The problems in arranging
suitable consultation times can largely be ascribed to the fact that the Respondents
and the State Attorney failed to correspond with his attorneys. He states that he does
not always check his emails or answer phone calls from unknown numbers.
EVALUATION
18. The Applicant raised an application on the unopposed motion roll t o compel
the Respondents to consider his application for a birth certificate submitted on 29
November 2023 and order them to furnish him with it. The Applicant sought the costs
of the application on an attorney and own client scale.
19. Determining the Applicant’s point in limine will not dispose of the application
or interfere with the task assigned to this Court. The Applicant refers to paragraph 79
of the answering affidavit where the Respondents asked, "Applicant’s application be
dismissed with costs”. The answering affidavit proceeds to deal with the merits of the
application.
20. In the answering affidavit filed on behalf of the Respondents, they alleged that
the only issue for determination was whether the Applicant was entitle d to the costs
of instituting the application. They asserted that the application for a mandamus was
misguidedly instituted and provided their reasons for this contention. The
Respondents are misguided about the issue this Court had to hear. That was spelt
out in the order of Lekhuleni J, which stated that the hearing was about costs. The
Court will consider their submissions to the extent that they are relevant to the issue
of costs. Let’s test the Respondents submission that the order sought by the
Applicant differs from the order granted by Fortuin J by applying the Endumeni
principles to its interpretation.3 The proper approach to interpreting legal documents,
including judgments and orders, is to read the words used in the context of the
document as a whole and in light of all relevant circumstances attendant upon its
coming into existence along with its text, the context and the purpose.
21. The Applicant asked the Court to order the Respondents to “consider” the
Applicant’s application for a birth c ertificate submitted on 29 November 2023 and to
3 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2
All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) at para 24
order the Respondents to furnish him with the certificate. Fortuin J ordered the
Respondents to make a determination as to whether the Applicant is entitled to the
issue of a birth certificate. There is a dif ference, albeit minimal. ‘Consider’ means to
think carefully about something before making a decision. ‘Determine’ means to
ascertain or establish exactly by research or calculation. The circumstances
attendant upon the order coming into being was that the Applicant had given late
notice of his birth, and the Respondents were already considering and processing
his application. The Court ordered the Respondents to determine whether the
Applicant is entitled to the issue of a birth certificate. That decision would be in the
hands of the screening committee and the Director General of the DHA. The
Applicant asked for relief that had already begun.
22. This Court will not give further credence to the point in limine or the
application to strike out paragraphs o f the answering affidavit except to say that any
talk of dismissing the application that has already served before two Judges in this
division who issued interim orders is misguided. This Court must examine the
application's merits to discharge its obligat ion to determine costs. The significance of
the Fortuin J order is in its relevance to costs. Fortuin J ordered the Respondents to
pay the costs of the postponement of the matter to 18 September 2024. Another way
of framing the costs order is that the Respondents were ordered to pay the wasted
costs occasioned by the postponement, meaning the costs of 14 June 2024 alone.
Fortuin J did not grant the costs of the application, which would have been
determined subsequently or by agreement. The Applicant received his birth
certificate, and the application became moot, except for the cost issue.
23. The awarding of costs remains at the discretion of the Court.4 The rule that
costs follow the result is subject to the above overriding principle.5 The first principle
in the award of costs is that, unless otherwise expressly enacted, it is at the
discre tion of the presiding judicial officer. The second principle is that the successful
party should have their costs as a general rule.6 The second principle is subject to
many exceptions where the successful party is deprived of their costs. The
4 Intercontinental Exports (Pty) Ltd v Fowles1999 (2) SA 1045 (SCA) at para 25
5 Unimark Distributors (Pty) Ltd v Erf 94 Silverton Day (Pty) L td 2003 (1) SA 204 (T) at 215 E -F
6
circumstance s where a Court may deprive a party of its costs are not exhaustive but
include the conduct of the parties, the conduct of the legal representatives, whether
a party achieves technical success only, the nature of the litigants and the nature of
the proceed ings. A deviation from the general rule that costs follow the result
requires a Court to be meticulous in its assessment to arrive at a just and fair result.
The principles which have been developed about the award of costs are by their
nature sufficiently flexible and adaptable to meet new needs which may arise
24. The Applicant obtained an award of damages for injuries sustained in an
accident from the Road Accident Fund. The legal representatives of both parties
would have known that one of the requirem ents for lodging an RAF claim and
payment of an RAF award is furnishing an identity document to the RAF. The
Applicant's attorney is a seasoned RAF practitioner, and the Respondent's attorney,
the State Attorney, acts on behalf of the RAF. The Applicant wa s involved in a motor
vehicle accident on 18 December 2015. He does not state when his claim against
the RAF was lodged. The significance of the date means that both he and his
attorney would have known that the Applicant required an identity document to
obtain compensation from the RAF. The claim was probably lodged on his behal f by
his father. Still, once the Applicant turned eighteen on 17 January 2023, he would
have required an identity document to receive any monetary award for his RAF claim.
There is no merit in the Respondents submission that the Applicant could have
sought to enforce the RAF award without an identity document. The Respondents
legal representative would have known that this was incorrect.
25. The Respondent provided a timeline of events relating to the Applicant’s
application for his identity document. The DHA established that the Applicant’s
sister’s birth had also not been registered. The Applicant’s father was informed that
he should also submit an LRB on her behalf. The DHA attempted to contact the
Applicant’s father on 22 December 2023 to inform him tha t the Applicant had
submitted the incorrect school report. The need for the correct school report was
communicated to the father on 16 January 2024 when he attended the DHA’s offices.
The correct school certificate was issued on 31 January 2024. Leratong H ospital
failed to verify the Applicant’s birth information until 31 May 2024, one month after
the father obtained the maternity certificate. The mandamus had already been
instituted by then.
26. The DHA arranged for the screening committee to interview th e Applicant and
his father on 6 June 2024 and 25 July 2024. The Applicant’s father did not answer
his phone or read the messages left for him to attend. The interview occurred on 1
August 2024, and the birth certificate was issued on 12 August 2024.
27. Two months in the process were lost, i.e., between November 2023 and
January 2024, because the father did not answer his phone in December. The DHA
could not be held responsible for this efflux in time. Three months were lost because
the Leratong Hospi tal would not verify the Applicant’s birth. Neither party could be
held responsible for this loss of time in the processing of the application. Once the
Applicant’s birth verification was confirmed, the Applicant failed to attend two
interviews. Two furt her months passed in the process. The delayed submission of
the Applicant’s sister’s application further delayed the process. The screening
interviews were scheduled simultaneously. The Applicant has to take responsibility
for the delay that ensued.
28. The Applicant instructed two Counsel, one who fell below the five -year
bracket of enrolment as a Counsel and the other with over thirty years of enrolment
as an advocate. The junior Counsel prepared the founding papers, and the more
experienced Counsel prep ared the replying papers, the heads of argument, and
provided argument at the hearing. This Court emphasised to Counsel that the
application instituted on 23 May 2024 was a simple application that fell within the
competency of the Applicant’s second Counse l. The Applicant’s more experienced
Counsel correctly agreed and tempered the cost expectation against the Respondent.
The Applicant had sought costs for its junior Counsel on scale B and its more
experienced Counsel on scale C. This application could just ify neither. Applicant’s
Counsel agreed that the normal costs order should apply if this Court grants an order
in their favour, meaning that one Counsel may recover their fees on scale A. A Court
may be receptive to granting a more favourable costs order a gainst a Department of
the State if the opposing party promotes the principles of transformation in selecting
Counsel to represent them. That is not the case in this matter.
29. The parties exchanged correspondences relating to the costs of this
applicati on after the Applicant obtained his birth certificate. The Respondent initially
denied any liability for costs, alleging that the Fortuin J order settled the matter of
costs. The Respondent eventually offered on 13 September 2024 to pay the
Applicant’s cos ts till 13 June 2024, the day before the application was heard by
Fortuin J. The Applicant rejected the offer.
30. Considering the circumstances of this matter, the question arises whether this
Court should deviate from the normal costs order that follows the result. The
Respondent urged the Court to do so as the circumstances in this matter required it
to follow a statutory process, and it was not responsible for the delays that ensued in
the processing of the application. What is apparent from the unco ntested facts
placed before the Court is that the Respondents could not be faulted for their effort in
processing the application and that the Applicant has to assume the responsibility for
delays that eventuated through his failure to be contacted.
31. Any South African citizen must give notice of the birth of their child within thirty
days of the birth. Regulation 128 provides for late registration of births in two
categories: between thirty days and one year of age, and then for those older than
one yea r. The Applicant fell into the latter category, and Regulation 5 applied to his
birth registration.
32. Regulation 5 requires the biological parents to give notice of their child’s birth
except where the child is older than eighteen years. A person older than eighteen
years may initiate the process themselves. The notice of birth is given in a
prescribed form. It has to be accompanied, among others, by the following
documents: proof of birth, an affidavit by a person who witnessed the birth,
fingerprints o f the parents and the child, photographs, certified copies of the parent's
identity documents, and proof of payment of the applicable fee. The Director General
must authenticate the veracity of the information provided to the DHA in the notice. A
notice of birth that does not meet the requirements may be rejected.
33. The DHA must follow a statutory process where delays may ensue in verifying
information, as has happened in the Applicant’s case. The Applicant has to shoulder
the blame for at least two peri ods in the delayed process, i.e., the provision of the
school report and the failure to respond to the interview dates. The regulations do
not make provision for the submission of school certificates, but the Respondents
explained this requirement.
34. This Court cannot attribute any delay in processing the Applicant’s birth
certificate to the DHA, but the Applicant cannot escape the delays that eventuated
from his side. It is unclear how speedily the Applicant expected the DHA to process
his application. He had not filed the correct school certificate, and the first delay
ensued from filing the correct one. The delay attributable to Leratong Hospital was
not the DHA’s fault. The Applicant’s father provided the maternal certificate issued by
Leratong Hospi tal to the DHA on 30 April 2024 and issued this application three
weeks later. The problem experienced with verifying the Applicant’s fingerprints
cannot be attributed to him, except for his delay in responding to the need for it to be
redone. The Applican t would have known the process involved in late birth
registrations, or his attorneys would have advised him of the peremptory steps. The
process is designed to prevent fraud, just as the RAF awards are paid out on proof
of identity to achieve the same pur pose.
35. The Respondents submitted that if this Court finds that the Applicant was
successful under the Fortuin J order, there was cause for it to deviate from the usual
costs order that follows the result. The Respondents relied upon the legislative
framework as their point of departure to argue that the costs should not follow the
result. The procedure for late birth registration is statutorily defined and regulated.
The DHA has to ensure that the legislative requirements are met before deciding on
an application for the late registration of births. The Respondents submit that there is
no evidence that the DHA delayed the process or refused to grant the Applicant a
birth certificate to warrant the institution of the application. The Applicant’s hasty
action for instituting the application when the LRB process was still underway is
responsible for the costs incurred.
36. This Court believes there are grounds to deviate from the usual costs order
after considering the conduct of both parties in this applic ation. The principle guiding
the order it makes is that peremptory statutory provisions require the cooperation of
all parties. It is inopportune for a party to delay the process and then seek a
mandamus to enforce it.
37. This Court is left with the im pression that the institution of this application was
inopportune. The Applicant deserved calm and considered counsel, taking into
account the processes of the DHA and any delay caused by the Applicant before
deciding whether the application was warranted. The Respondents correctly claim
that the dies for them to give notice of their opposition to the application had not
elapsed before the application was heard. Meticulous attention to detail would have
warned the Applicant’s legal representatives that the dies for filing the Respondent's
notice of opposition had not expired before the application was heard on 14 June
2024. They should have also urged the Applicant to commence the late registration
process with the DHA well before he obtains his award of dam ages.
38. In the premises, this Court clarifies that the Fortuin J order entitled the
Applicant to claim his costs for 14 June 2024. The delay that ensued from 14 June
2024 to the issue of the Applicant’s birth certificate cannot be attributable to the DH A.
The evidence is that they made special arrangements to accommodate the Applicant
and his sister. The Respondents made a fair offer to settle the Applicant’s costs up to
13 June 2024. The Applicant rejected that offer but instead threatened to appoint
additional Counsel and seek unjustified costs of Counsel on the B and C scales. The
Respondents subsequently revoked that offer.
39. When the Honourable Fortuin J granted the order of 14 June 2024, she did
not have recourse to the Respondents version of events. The order made by the
Honourable Lekhuleni J allowed for proper ventilation of the issues and for the
parties to supplement the papers that this Court had to consider. After carefully
considering the papers and the arguments presented, this Court finds that this case
calls for it to exercise its discretion and deviate from the usual order that costs follow
the result.
ORDER
1. Each party shall pay its own costs from the institution of the application
to 13 June 2024.
2. From 14 June 2024, each party shall pay its own costs, including the
costs of the hearings on 18 September 2024 and 11 February 2025.
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
19 February 2025
Judgment was handed down at 10h00 on 19 February 2025 and delivered to the
parties by email.
Applicants Counsel: A Laubscher, J -H Gouws Instructed by Adendorff Attorneys Inc.
Resp ondents Representative: State Attorney, L Manuel