SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

CASE NO : 21886/2023
REPORTABLE

In the matter between :-

V[...] K[...] First Applicant

S[...] M[...] Second Applicant

and

MINISTER OF HOME AFFAIRS First Responde nt

DIRECTOR -GENERAL OF THE DEPARTMENT OF
HOME AFFAIRS Second Respon dent

VFS GLOBAL SOUTH AFRICA Third Responde nt

Coram : MOOSA AJ
Heard : 2 May 2025
Delivered : 26 May 2025 (delivered electronically to the parties )
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Summary : Family law – children’s rights and rights of fathers - registration
of father hood of child born out side of marital bonds – s 11(5) of
the Births and Deaths Registrations Act 51 of 1992 – DNA
paternity test ing not mandatory .
___________________________________________________________________
ORDER OF COURT
___________________________________________________________________
(a) The summary judgment application against the Third Respondent i s
dismissed with no order as to costs .

(b) Any person who, by order of a high court issued under s 11(5) of the Births
and Deaths Registration Act 51 of 1992, is confirmed to be the father of a
child born out side of marital bonds to a South African mother is entitled as of
right to have his particulars recorded on the child’s birth certificate without the
need to produce further proof of paternity by way of a DNA test result .

(c) In accordance with s 11(5) of the Births and Deaths Registration Act , 1992,
the First Applicant i s confirm ed to be the father of P[...] K[...] M[...] (born 1
December 2020) and V[...] K[...] J[...] M[...] (born 10 March 2022) , and the
Second Applicant’s consent as envisaged in s 11(4) is dispensed with.

(d) Consequentially, First and Second Respondents are directed to forthwith
register the First Applicant ’s particulars on the birth certificates of P[...] K[...]
M[...] and V[...] K[...] J[...] M[...] as their respective fathers.

(e) First Applicant’s application for exemption under s 7(2)(c) of the Promotion of
Administrative Justice Act 3 of 2000 is dismissed.

(f) The interim interdict granted on 30 October 2024 is extended until 31 May
2026 (or such other date as may be ordered), pending the finalisation of First
Applicant’s application for permanent residency on the basis of his paternity,
which application is to be lodged in accordance with the provisions of the
Immigration Act 13 of 2002 by no later than 31 August 2025 (or such extended
date as this Court may authorise on good cause shown).

(g) First and Second Respondents are jointly and severally liable, the one pa ying
the other absolved, for applicants’ party and party disbursements incurred in
relation to Part A and Part B of this application (but excluding disbursements
in relation to the summary judgment application).
____________________________________________ _______________________
JUDGMENT
___________________________________________________________________
Moosa AJ

INTRODUCTION

1. This judgment relates to Part B of an application located mainly in the sphere
of family law – the rights of children and father s of children born outside of
marriage . Before narrating the relief sought and crystallis ing the issues arising
for adjudication , it is necessary that I provide my reasons for an order issued
at the hearing on the basis that written reasons will be provided in my
judgment .

2. At the hearing, I granted condonation for the late filing of the First and Second
Respondents ’ (the Respondents) answering affidavit. It was filed late by more
than 3 ½ calendar months and in breach of a court order.

3. On 30 October 2024, an order was granted by Goliath AJP (as she then was)
in which she directed the Respondents to file their answering affidavit by 2
December 20 24. Service thereof occurred on 14 March 2025 . The
condonation application was filed almost a month later ( ie, on 9 April 2025 ).

4. First Applicant , acting in person, oppose d condonation on the basis of
prejudice and the absence of a valid reason for lateness. He avers ‘the delay
was intentional and inexcusable’ , and that ‘the explanation lacks particularity
and fails to meet the standard of reasonableness required for condonation’.

5. The founding affidavit support ing the condonation application is depose d by
the State Attorney. Admirably, h e accepts responsibility for the failure to
comply with the court order. I am satisfied that his actions were n either wilful
nor negligent .

6. The State Attorney explains that his office received the signed answering
affidavit shortly after 28 October 2024, being the date on which it was signed
by its deponent . The State Attorney was at that time involved in other litigation
and arrange d for the timeous delivery of the answering affidavit . This entailed
prepar ing a filing notice and sign ing it on 28 October 2024, which he then
promptly handed to support staff at his office with express instructions that it
be appended to the signed answering affidavit once it is received and it must
thereupo n be delivered per the court order . Unfortunately, this never
happen ed.

7. On 10 March 2025, the attorney became aware that the affidavit was not filed
- he read this in the First Applicant’s practice note . The attorney then took
steps to remedy the situation . There is nothing in the affidavit opposing
condonation which gainsays the cause of the delay - an innocent
administrative oversight . I find that the explanation is reasonable and covers
the entire period. See Van Wyk v Unitas Hospital and another 2008 (2) SA
472 (CC) paras 22, 25.

8. The Respondents signed the ir answering affidavit on 28 October 2024 . They
caused it to be delivered to their attorney’s office promptly . They operated
under the belief that the ir attorney , or his office, would deliver the signed
affidavit in compliance with this Court’s order. To refuse condonation to them
in these circumstances would be unfair and harsh . There is no fault on the
Respondents’ part. See Melane v Santam Insurance Co Ltd 1962 (4) SA 531
(A) at 532C -F.

9. As for prejudice, the applicants suffered no real prejudice. The answering
affidavit was served about six weeks before the scheduled hearing date. First
Applicant filed a detailed reply spanning 30 pages ( including annexures).

10. In these circumstances, I find that the refusal of condonation would
significantly prejudice the Respondents and permit the applicants to unfairly
benefit from an administrative error in the attorney’s office which was beyond
the Respondents’ control . As this judgement shows below , this application
raises issues of public signific ance as regards the Births and Deaths
Registration Act 51 of 1992 (the BADRA) . Therefore, c ondonation also
ensures that Respondents’ answer ing affidavit serves before this Court on a
matter of substantial importance.

THE RELIEF SOUGHT AND THE ISSUES ARISING FOR DETERMINATION

11. The relief sought , and the issues therefrom for determination , are summarised
as follows :

(a) an order , in terms of Uniform Rule 32 (UR 32) , granting summary judgment
against the Third Respondent in favour of the First Applicant for payment
of the agreed sum of R3 085, being the aggregate application fee paid for
reference n o. TRV2756383 and reference no. PRP3485242, plus interest
at 15% per an num from date of payment to date of final repayment;
(b) an order declaring that when a high court confirms paternity under the
BADRA and directs the Respondents to register the father hood of a child
born outside of the bonds of marriage , then the addition of the father’ s
particulars on the child’s birth certificate after the initial birth registration is
to be effected by the Respondents as per the court order without the need
for the father to produce further proof of paternity by w ay of a DNA test
result;
(c) an order under the BADRA confirming the First Applicant’s paternity of his
minor sons born outside of marital bonds to the Second Applicant, a South
African citizen, namely, P[...] K[...] M[...] (born 1 December 2020) and V[...]
K[...] J[...] M[...] (born 10 March 2022), and directing the First and /or
Second Respondent to re cord the First Applicant ’s particulars as father on
the children’s respective birth certificates;
(d) an order, in terms of s 7(2)(c) of the Promotion of Administrative Justice
Act 3 of 2000 (the PAJA), exempting First Applicant from the duty to
exhaust all internal remedies before approaching this Court for relief by
way of review under the PAJA as regard s the adverse decision envisaged
in (e) below ; and
(e) if an order is granted as envisaged in (d) above , then an order is sought
reviewing and setting aside Second Respondent’s adverse administrative
decision taken on 25 July 2024 in terms of which the First Applicant is
refused the issuance of a permanent residen ce permit (PRP) under s 26(b)
of the Immigration Act 13 of 2002 (the Immigration Act) .

FIRST ISSUE: IS FIRST APPLICANT ENTITLED TO SUMMARY JUDGMENT ?

12. First Applicant ’s summary judgment application is unopposed.

13. The UR 32 allows a plaintiff to obtain judgment summarily (ie, without a trial )
in an action instituted by way of a summons served on a defendant who
deliver s a plea which is found by a high court as not raising any issue for trial,
namely, a good faith (that is, bona fide) defence and/or counterclaim . For the
ensuing reasons, I find that the First Applicant has failed to prove the
essentials of UR 32 .

14. The pre -requisites f or a judgment under UR 32 are: (i ) the issuance and
service on a defendant of a summons claiming relief of the kind encompassed
by UR 32(1) (such as, payment of a liquidated sum); (ii) the delivery of a plea
which does not raise a triable issue; and (iii) the delivery of an application for
summary judgment within the prescribed period , supported by an affidavit
making the case that the defendant’s pleadings lack a good faith defence or
counterclaim .

15. While t he First Applicant’s claim is for a liquidated amount in money, his
summary judgment application was not preceded by the issuance and service
of a summons against the Third Respondent. Therefore, no plea has been
filed which is alleged in the summary judgm ent application as lacking a triable
issue.

16. Indeed, the Third Respondent has not participated in th ese proceeding s at all.

17. First Applicant’s claim for payment of an agreed sum is contained in his Notice
of Motion . Since this case was launched as an application (and not as an
action) , UR 32 does not apply. In addition, there is no plea which can be said
to contain a defence that is not in good faith or is intended purely as a delay.

18. In the premises, summary judgment is refused with no order as to costs .

SECOND ISSUE: IS SECTION 10 OR 11(4) OF THE BADRA APPLICABLE?

19. In the founding affidavit , the First Applicant avers that he is entitled to an order
which obliges the Respondents to register him under s 10 of the BADRA as
the father of his two sons. Respondents, on the other hand, aver that the
applicable provisions are s 11(4) read with s 11(4A) of the BADRA . To resolve
this dispute requires an understanding of the background facts and the
pleaded case .

20. First Applicant is a Zambian citizen who entered South Africa on a visitor’s
visa issued under s 11(6) of the Immigration Act. Second Applicant is a South
African citizen. From at least 2018, the y are partners in a permanent
relationship. They live together in Langa, Cape Tow n, but are not married to
each other . From their relationship, two children are born, namely, P[...] K[...]
M[...] who is presently 4 ½ years old (PKM), and V[...] K[...] J[...] M[...] who is
presently 3 years old (V KM). All this is common cause.

21. Pursuant to the Second Applicant giving notice of birth under s 9(1)1 read with
s 10(1)(a)2 of the BADRA, birth certificates were issued for PKM and V KM.

1 Section 9(1) reads: ‘In the case of any child born alive, any one of his or her parents, or if the
parents are deceased, any of the prescribed persons, shall, within 30 days after the birth of
Both children bear the Second Applicant’s maiden surname. T he children’s
birth certificates do not mention their fathers’ details at all . First Applicant was
absent when the notice s of birth w ere done. Th erefore , his details were not
included. All efforts to change this position have failed. First Applicant wants
the initial registration process under s 9 and s 10 to be re -done and his details
include d.

22. Respondents concede that no factual basis exists to doubt the genuineness of
the First Applicant’s fatherhood of PKM and VKM. Accordingly, I find that the
Respondents have not rebutted the presumption of paternity operating by
virtue of s 36 of the Children’s Act 38 of 2005 (the Children’s Act).3

23. By reason that the First Applicant’s paternity of PKM and VKM are not
disputed, Respondents are agreeable to amending the birth certificates to
include First Applicant’s particulars as the children’s father. The problem is
that the Respondents insist on proof of paternity through DNA test ing. It is
common cause First Applicant cannot afford the tests and offered to undergo
the paternity tests at the Respondents’ cost . They refuse t o pay th ose costs .

24. Therefore, the First Applicant seeks an order recognising him as the children’s
father and an order obliging the Respondents to re -do the initial birth
registration under s 9 and s 10. Th ese provision s do not require a DNA
paternity test result.


such child, give notice thereof in the prescribed manner, and in compliance with the
prescribed requirements, to any person contemplated in section 4.’
2 Section 10 reads: ‘ (1) Notice of birth of a child born out of wedlock shall be given — (a) under
the surname of the mother; or (b) at the joint request of the mother and of the person who in
the presence of the person to whom the notice of birth was given acknowledges himself in
writing to be the father of the child and enters the prescribed particulars regarding himself
upon the notice of birth, under the surname of the person who has so acknowledged. …
(2) Notwithstanding the provisions of subsection (1) , the notice of birth may be given under
the surname of the mother if the person mentioned in subsection (1) ( b), with the consent of
the mother, acknowledges himself in writing to be th e father of the child and enters particulars
regarding himself upon the notice of birth. ’
3 Section 36 reads: ‘If in any legal proceedings in which it is necessary to prove that any
particular person is the father of a child born out of wedlock it is prov ed that that person had
sexual intercourse with the mother of the child at any time when that child could have been
conceived, that person is, in the absence of evidence to the contrary which raises a
reasonable doubt, presumed to be the biological father of the child. ’
25. In his founding affidavit, the First Applicant paints a bleak picture as to his and
the Second Applicants’ financial position. The y are poor persons liv ing in the
Langa township in rather difficult conditions. In addition to PKM and VKM, the
applicants hav e another dependent minor child, being Uvayo M[...] (UM) - he
is the Second Applicant’s biological child from a prior relationship with another
man. UM is in high school. All th ese facts are common cause too.

26. The following undisputed statements also appear in the founding affidavit:

‘20.8 The DNA fees is expensive. My partner is unemployed; my visa does
not allow me to take up employment; the business is very difficult since
lockdown period; we informed the Department of Home Affairs and
requested tha t they insert my [name] on my children’s birth certificates
without the DNA results, or we do DNA, the Department of Home
Affairs bears the cost as there is no paternity dispute as required by
Section 10 of the Births and Deaths Registration Act. …
27.1 The visitor’s visa does not allow me to work, study, and open a
business account. Therefore difficult for me to provide for my family. My
partner only contribute R350 SASSA [per month], both our children get
R500 SASSA [per month] and its not enough and that is not the future I
want for my children depending on government sponsorship.’

27. Respondents aver that the applicable regime is not s 10 of the BADRA
(dealing with the initial birth registration of a child born outside of marital
bonds) but rather s 11 (de aling with amendments to a birth certificate of a
child born outside of mar riage). I agree , albeit in part only (see below in
paragraphs 3 8 to 44).

28. Respondents’ Counsel argued that if I agree , then First Applicant’s petition for
relief under the BADRA must fail. I disagree. For the reasons outlined below in
the paragraphs 29 to 35, I find that there no justifiable basis to no n-suit him
under the BADRA . Also, the interests of justice militate against such a ruling .

29. I was partly guided by what was held in R v Hepworth 1928 AD 265 at 277:

‘A judge is an administrator of justice, he is not merely a figure head, he has
not only to direct and control the proceedings according to recognised rules of
procedure but to see that justice is done.’

30. More recently, Koen J (as he then was), in S v Zuma and another 2023 (1)
SACR 621 (KZP), enjoined judicial officers to be mindful that they are not only
in the vanguard for the protection of the Constitution, 1996 (the Constitution)
but also of public trust and confidence in the judicial system set up to
administer ju stice in our constitutional dispensation. To this end, Koen J wrote
instructively :

‘[23] … (a) A court must ensure that public confidence in the justice system
is maintained and not eroded;
(b) Litigants should leave the court with a sense that they we re given a fair
opportunity to present their case, and that they received a decision that is not
only actually, but also perceived to be, fair, dispassionate, objective and free
of bias. ’4

31. I also took into account that First Applicant is a lay person wi thout formal legal
education or qualification. Although he showed an appreciably higher level of
knowledge and understanding of high court rules and this Division’s practice
directives as compared with other lay litigants, he remains a lay person who
repre sents himself because he cannot afford a lawyer. He accessed the
hallowed corridors of this Court on his own seeking justice in the form of an
order oblig ing state actors to respect his and his children’s constitutional
rights.

32. I also considered that whi le an applicant must stand or fall by the founding
papers, an applicant does not, generally, have to plead the law. In this case,
the First Applicant pleaded his case with sufficient particularity that made it
clear to the Respondents and I as to what he sought. He expressly pleaded

4 Litigants should not only see that justice is done but must perceive it to be done. It must be
borne in mind that p erception is as dangerous as reality: perception is the beholder’s reality.
that he seeks an order authorising the inclusion of his details as father in the
birth certificates of PKM and VKM , and that this claim is rooted in the BADRA.

33. In his founding papers, First Applicant explained the process fol lowed by the
Second Applicant and the Respondents’ officials which led to the issuance of
PKM and VKM’s birth certificates pursuant to s 10 of the BADRA without the
inclusion of his details as the children’s biological father. He objects to this
state of a ffairs . He relies on his rights as recognised in Centre for Child Law v
Director General: Department of Home Affairs and others 2022 (2) SA 131
(CC) .

34. In reaching my decision against non-suiting the First Applicant, I also
considered the paramountcy of the best interests of PKM and VKM , and that
the Respondents’ refusal to register First Applicant as father is a n on -going
form of humiliation - it offend s not only the First Applicant’s dignity rights in s
10 of the Constitution , but also the children ’s dignity too.5

35. First Applicant acts in his own interest and in his sons ’ interest s, as is
envisaged by s 38(a) and (b) of the Constitution . He seeks to end a violation
of their constitutional rights by state parties . If I were to non -suit the First
Applicant, then I would be non-suiting the children too and permit on -going
violations of their, and First Applicant’s, constitutional rights. That is an
unpalatable outcome .

36. As regards the dignity of the applicants and their minor sons , it is a matter of
real concern that the BADRA (and its regulations ), as well as the Children’s
Act, continue to use the offensive expression ‘child born out of wedlock’. In
Centre for Child Law supra para 69, the ap ex court reminded us that this is
‘outmoded legal terminology which goes to the core of dignity’. The court
wrote:


5 Section 10 reads: ‘Everyone has inherent dignity and the right to have their dignity respected
and protected.’
‘The use of the expression “born out of wedlock” to describe a child
undoubtedly injures their dignity and implies that they are not worth y of equal
respect and concern. The continued distinction between children born within
or out of wedlock, which the impugned law conveys, stigmatises the latter
category of children. ’

37. Words matter, especially in a court judgment. Th erefore , except when quoting
from relevant provisions in a law, this judgment will not perpetuate the stigma
attached when the prevailing law brands PKM and VKM (and other children
like them) as ‘born out of wedlock’. Rather, the y will be referred to as being
‘born outside of marital bonds’ . See Centre for Child Law supra para 71 .

38. I now re vert to the Respondents’ case alluded to a bove in paragraph 27. Their
Counsel argued that the legal framework which applies here is ss 11(4) and
(4A)6 of the BADRA headed ‘Amendment of birth registration of child born out
of wedlock’, read with reg s 127 and 14(2)8 of the Regulations on the Births and

6 These provisions in s 11 read: ‘ (4) A person who wishes to acknowledge himself to be the
father of a child born out of wedlock, may, in the prescribed manner, with the consen t of the
mother of the child, apply to the Director -General, who shall amend the registration of the
birth of such child by recording such acknowledgement and by entering the prescribed
particulars of such person in the registration of the birth of such ch ild.
(4A) An amendment of the particulars of a person who has acknowledged himself as a father
of a child as contemplated in subsection (4) and section 10 (1) (b) of the Act shall be
supported by the prescribed conclusive proof of that person being the father of the child. ’
7 Regulation 12 reads: ‘Notice of birth of child born out of wedlock. —(1) A notice of birth of
a child born out of wedlock shall be made by the mother of the child on Form DHA -24
illustrated in Annexure 1A or Form DHA -24/LRB illustrated in Annexure 1A, whichever
applicable.
(2) The person who acknowledges that he is the father of the child born out of wedlock
must — (a) enter his particulars and sign on Part D of Form DHA -24 illustrated in Annexure 1A
or on Part D of Form DHA -24/LRB illustrated in Annexure 1B, as the case may be, at the
offices of the Department and in the presence of an official of the Department as
contemplated in section 10 (1) (b) of the Act; (b) submit an affidavit on Form DHA -288/C
illustrated in Annexure 2D in which he — (i) states his relationship to the mother; and (ii)
acknowle dges paternity of the child; and (c) have his fingerprints verified online against the
national population register: Provided that in the event of the father being a non -South African
citizen, he must submit a certified copy of his valid passport and visa or permit, permanent
residents identity document or refugee identity document. ’
8 Regulation 14 reads: ‘ Application for insertion of unmarried father’s particulars in birth
register of child born out of wedlock. —(1) An application for the insertion of the father’s
particulars in terms of section 11 (4) of the Act shall be made on Form DHA -1682 illustrated in
Annexure 6.
(2) An application contemplated in subregulation (1) made by a person who is a non -South
African citizen shall be accompanied by original paternity test results, not older than 3
months, from an institution designat ed by the Director -General confirming that such person is
the biological father of the child.
Deaths, 2014 promulgated by First Respondent under GN R128 in GG 37373
of 26 February 2014 in accordan ce with his delegated powers under s 32 of
the BADRA. For the cogent reasons that follow , I find that this is not so.

39. In cases where s 11(4) appl ies (ie, when amendments to a birth certificate
occur with a mother’s consent) , then s 11(4A) makes it compulsory (‘shall be
supported’) for a father of a child born outside of mari tal bonds to provide
proof of paternity by way of a DNA test result. Without such scientific proof of
paternity , the amendment cannot be effected, despite the mother’s consent.

40. At the hearing , First Applicant argued that I should declare ss 11(4), (4A), and
(5) unconstitutional . As this issue is not properly before me in the pleadings , I
will not enter those waters. I will proceed to determine this case on the basis
that the relevant provisions in s 11 are valid (until a court determines
otherwise ).

41. There is nothing in the applicants’ pleadings indicating that Second Applicant
consent ed to the amendment of the birth certificates to record First Applicant’s
particulars as father of PKM and VKM . At the hearing, she urged this Court to
allow the First Applicant to remain in South Africa and to prevent his
deportation . (I deal with the immigration issue later in this judgment.) From the
bar, s he described him as a loving father who has strong bonds with PKM and
VKM . From the bar, s he confirmed that, as stated in the founding papers, the
First Applicant supports her and the children financially. These facts are
undisputed.


(3) The Director -General must authenticate the veracity of the information furnished to him or
her in respect of the application contemplated in subregulation (1) before approving the
application.
(4) Upon approval of the application, the Director -General must record the particulars of the
person as the father of the child on the birth register of the child and issue to such person —
(a)
a birth certificate on Form DHA -5 illustrated in Annexure 4; or (b) an acknowledgement o f
receipt on Form DHA -25 illustrated in Annexure 3, if, for any reason, the birth certificate
cannot be issued immediately. ’ (my emphasis)
42. Second Applicant ’s concern about the First Applicant’s deportation aligns with
her pleaded case . She filed a confirmatory affidavit with five paragraphs . After
making the usual introductory statements, sh e recorded the following facts:

‘4. I further confirm that, I am in a permanent partnership with V[...] K[...]
and together we have two children.
5. I further confirm that I support this application for him to reside in the
republic for the benefit of our children. ’ (my emphasis)

43. Accordingly, there is nothing in the Second Applicant’s affidavit indicating that,
in accordance with s 11(4) ( see quote above in footnote 6), she consent ed to
the amendment of PKM and VKM’s birth certificates to include the First
Applicant’s particulars as father . Therefore, I am satisfied that s 11(5) of the
BADRA applies to this application (and not s 11(4)) .

THIRD ISSUE: IS FIRST APPLICANT ENTITLED TO RELIEF IN SECTION 11(5) ?

44. There is a dearth of case law on s 11(5). Therefore, it is incumbent on me to
discuss its provisions to determin e if its requirements are met.

45. Section 11(5) of the BADRA reads:

‘Where the mother of a child has not given her consent to the amendment of
the registration of the birth of her child in terms of subsection (4) , the father of
such a child shall apply to the High Court of competent jurisdiction for a
declaratory order which confirms his or her paternity of the child and
dispenses with the requirement of consent of the mother contemplat ed
in subsection (4) .’9


9 Even though s 11(6) renders s 26(1)(b) of the Children’s Act applicable to s 11(5), only high
courts are empowered to grant relief under s 11(5). Presumably, this legislative policy is
informed by high courts function ing as upper guardians of children (see RC v HSC 2023 (4)
SA 231 (GJ)), and their jurisdiction in all matters concerning a person’s status (such as,
determining fatherhood of a child).
46. Textually, s 11(5) records that declaratory relief thereunder entails two orders:
(i) an order confirming paternity of a child; and (ii) an order dispensing with a
mother’s consent for amending her child’s birth certificate by the inclusion of
the father’s prescribed particulars. Each will now be discussed in turn.

Dispensing with the Second Applicant’s consent

47. A birth certificate is no ordinary document. It is a vital instrument for families
universally: viewed narrowly, it gives recognition to a legal fa ct, namely, that
the law recognises a parent -child relationship . In South Africa, this recognition
underpins a range of benefits operating by law (such as, the right o f a child to
inherit intestate from a parent ; and the right to parental care). V iewed mor e
broadly, a birth certificate aids in acknowledging family ties between the child
to whom the certificate relates and his/her extended family (ie, grandparents,
uncles, aunts, and cousins), including ancestr al family , a key feature in some
cultures and traditions in South Africa (and elsewhere in Africa and the globe) .

48. All this aligns with the indisputable fact that the birth of a child bonds him/her
not only to his/her parents but to the mother and father’s famil ies too. For this
reason, children’s rights extend past mere parental responsibilities. The ‘best
interest s of a child’ standard includes the right of a child to, inter alia, have
contact with his/her paternal and mater nal family (such as, with grandparents).
See YCM v NDM (CA04/2024) [2024] ZAECMKHC 144 (10 December 2024).
In this way, our law gives practical meaning and expression to the notion and
spirit underpinning the age-old proverb that ‘it takes a village to raise a child’.

49. When dealing with an application under the aegis of s 11(5), cognisance must
be taken of its appl ication in the context of a n institution in the DNA of our
society , namely, a family , howsoever constituted and structured. That s 11(5)
must be interpreted for its application to families in a regional and global
context , rather than a narrow South African context only, is clear from s 2 of
the BADRA. Its provisions give this statute a very wide berth. Section 2 reads:

‘The provisions of this Act shall apply to all South African citizens, whether in
the Republic or outside the Republic, including persons who are not South
African citizens but who sojourn permanently or temporarily in the Republic,
for whatever purpose. ’

50. Whatever their character, family units are vital in the fabric of our society.
When applying s 11(5), family ties must be promoted and protected, including
by state actors. See Dawood and another v Minister of Home Affairs and
others; Shalabi and another v Minister of Home Affairs and others; Thomas
and another v Minister of Home Affairs and others 2000 (3) SA 936 (CC)
paras 30 - 31. In th e present case, registration of the First Applicant as father
of PKM and VKM acknowledges family ties between them and r ecognises the
children’s heritage as members of the ‘ K[...]’ family of Zambia. All this militates
in favour of dispensing with the Second Applicant’s consent for purposes of s
11(5).

51. When adjudicat ing whether to dispense with the birth mother’s consent , I took
into account that registering the father’s name on the children’s birth register
(in addition to that of the ir mother) is , on the one hand, consistent with the
best interests of the child ren involved and, on the other, promotes respect for,
and pr otection of, the child ren’s dignity. These are entrenched fundamental
rights.

52. Registration of fatherhood serves a child’s best interest - it fosters family
affiliation by reason that the child no longer sees him/herself as the child only
of the mother but of both parents: ‘Children may see themselves as being of
an inferior status as they do not have a proper family, and this can cause
stresses such as social isolation and social stigma.’ (Centre for Child Law
supra para 80)

53. The non -registration, or point -blank refusal to register, a father’s details on a
child’s birth certificate infringes the father and the affected child’s dignity in a
most fundamental way. Registration of fatherhood i s part of a father and his
child’s identity – it is integral to their respective sense of self and belonging
which is, in turn, an important component of their sense of self-worth and
value.

54. Compliant with the imperative in s 39(2) of the Constitution of promoting
value -based interpretation , the construc tion of s 11(5) adopted in this
judgment promotes the constitutional rights of fathers and of their child(ren)
born outside of marital bonds. They are vulnerable groups of persons.
Moreover, it promotes constitutional norms by advancing respect for, and
protection of, the family, including cultural , linguistic, and religious values of a n
identified family. This accords with this Court’s duty to ‘promote the spirit,
purport and objects of the Bill of Rights’ (s 39(2)).

55. Although s 11(5) provides for dispensing with a mother’s consent, this does
not mean that the mother is overlooked in the process . Her posture to the
father’s application is vital. Applications of this nature involve more than simply
a father’s right to be acknowledged in the eyes of the law as a child’s father .

56. The mother’s voice falls under the rubric of the ‘best interest s of a child’
protected in s 28 (2) of the Constitution .10 This statutory cum constitutional
standard is paramount in any matter concerning a child (such as, applications
to register a father’s name on a child’s birth certificate through amendment ).

57. In this context, t he following dicta in Centre for Child Law supra is instructive:

‘141. It cannot be seriously disputed that it is in the best interests of a child to
be practically and more meaningfully linked to a loving, caring,
supportive and responsible father, not just any man who happens to
have fathered hi m or her. All things considered, the mother of that child
is best -suited to tell whether the unmarried man claiming to be the
father is in fact the father and a responsible one. …

10 Section 28(2) creates an 'expansive guarantee' - it is a guiding principle and a right. See S v
M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 22. The importance of
protecting the best interests of children lies partly in the fact that they are a vulnerable group
and partly because they lack the means to act in their own interests. See RMD v
KD (16995/22P) [2023] ZAKZPH C 2 (13 January 2023) para 24.
142. … A child’s mother must therefore necessarily be asked to say: (i)
whether the man claiming to be the father is indeed the father; and (ii)
even if he is, whether he is the kind that would help advance the best
interests of the child and give expression to the paramountcy of those
interests or one whose somewhat formalised a ssociation with the child
would be prejudicial to the child’s best interests.’

58. While the Second Applicant has not said that she consent s to the amendment
of PKM and VKM’s birth certificates, she has not object ed to it either. This is a
relevant factor favouring dispensing with her consent. Moreover, the First
Applicant is involved in the children’s daily life, and in Second Applicant’s too.
It is common cause that they cohabit as husband and wife . They reside
together in a dwelling at Langa and are co-parent s of PKM, VKM, and UM ,
each having parental rights and duties . Clearly, t hey are a family and they live
as a family .

59. All these objective facts favour the dispensing of Second Applicant’s consent
envisaged by s 11(5) of the BADRA. An order to this effect will be granted .

Confirmation of First Applicant’s paternity of PKM and VKM

60. In any application rooted in s 11(5), an applicant bears the onus to prove his
alleged fatherhood and, therefore, entitlement to the declaratory relief. To
grant final declaratory relief under s 11(5), the rule of evidence in Plascon -
Evans applies, rather than the rule in Webster v M itchell for interim relief.11

61. It is common cause that First Applicant is the biological father of PKM and
VKM. Since the presumption flowing from s 36 of the Children’s Act has not

11 The test in Webster v Mitchel l requires a court to consider the facts averred by an applicant
for interim r elief, together with facts set out by a respondent that were not or could not be
disputed. Based on all those facts , a court ought to form a view on whether, having regard to
the inherent probabilities, the applicant would likely prevail in the second part of the
application . An applicant ‘ could only be denied relief if the Respondent threw serious doubt on
his case. In other words, the version of the Appellant should have been considered, if there
was no inherent improbability therein and unless serious doubt was cast upon it by the
Respondent, it should have been sufficient to carry the day. ’ (RC v HSC supra pa ra 16 )
been rebutted , First Applicant is entitled to judicial confirmation under s 11(5)
that he is the father of PKM and VKM. An order to this effect will be granted.

FOURTH ISSUE: IS DNA TESTING MANDATORY WHEN SECTION 11(5) APPLY?

62. The main bone of contention dividing the parties concerns DNA testing.
Respondents’ Counsel argued that regardless of whether an amendment falls
within the realm of s 11(4) or s 11(5) of the BADRA, the legal position is the
same: by operation of law, proof of paternity through DNA testing is
mandatory. This submission crystal lises the next question f or adjudication : is
proof of paternity by scientific DNA testing required even after a high court
confirms paternity under s 11(5)? This question of law is untested terrain.

63. The Respondents ’ answer is ‘yes’; First Applicant ’s answer is ‘no’. These
parties were unable to provide case law directly on point to support their
respective contentions . My survey of case law also uncover ed none.

64. It will be recalled that it is common cause that the First Applicant is poor and
cannot afford DNA testing. He argues that any requir ement of DNA paternity
testing being a pre -condition for amending PKM and VKM’s birth certificates,
despite a court order c onfirming paternity, imposes undue financial hardship
which would disproportionately affect him and other poor (mainly Black)
parents than it would affect affluent parents (ie, those with means) . This
argument, in my view, has merit . I did not understand R espondents’ Counsel
to disput e it.

65. Respondents’ Counsel conceded that DNA tests are , relatively speaking,
expensive and unaffordable to poor persons (such as, to First Applicant) . In
my view, i t is probably for this reason that the legislature, being mindful of the
high levels of indigence in our country, took a policy decision not to require
DNA testing as a standard requirement to prove paternity before a person is
registered as a child’s biol ogical father under s 9 and s 10 of the BADRA.

66. Despite this, Respondents contend their hands are tied – they interpret the
law as ordain ing DNA testing for purposes of s 11(5) even if a high court
confirms paternity . For the ensuing reasons, I find that this approach is
inconsistent with true position emerging from a proper interpretation of the
statut ory provisions.

67. As a point of departure, interpreting a statut e involves an analysis of the
relevant law-text, having regard to its broader int ernal and external contextual
scene, and its purpose. Equally important, statutes are to be interpreted
consistently with the Constitution and through the prism of its values. See
Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC) para 28.

68. The highwater mark of the case advanced by the Respondents in favour of
mandatory DNA testing for proof of paternity is two-fold: first, they argue it is
necessary as a security measure for immigration administration under the
Immigration Act ; secondly, they contend that it is needed to protect the
integrity of the national population register. I n my view, neither argument holds
water.

69. The first argument mentioned in paragraph 68 is predicated on the contents of
the following extracts appear ing in the Respondents’ answering affidavit:

‘31. … There have been cases where single mothers get involved in
relationships with non -South African men and approach the Second
Respondent to record these persons as fathers of their children even if
they are not the biological fathers. This is then used to motivate for
permanent residence permits due to the right that children have to be
cared for by both their parents.
32. To this end, DNA testing is the only reliable method of ascertaining the
paternity of t he child. To do away with this requirement would pose a
serious security risk of fraud and manipulation. Second Respondent
would be left with no recourse as the rights of children are of
paramount importance.’

70. At the hearing, Respondents’ Counsel was at p ains to point out that this
extract is not intended to suggest that applicants are engaged in the
unsavoury practice alluded to in the quote. For purposes of this case, the
Respondents accept that the First Applicant genuinely, and with good reason,
believ es himself to be PKM and VKM’s biological father. Second Applicant
admit s that he is the ir father.

71. As regards the extracts quoted above in paragraph 6 9, the Respondents are
here seeking to use DNA testing in the realm of s 11 (5) to advance purposes
related to immigration regulation . However, t hose objectives have nothing to
do with the aims of the BADRA itself , nor with s 11(5) or s 11 read holistically .

72. To this end, i t is an established rule that ‘there is no principle of interpretation
that requires a court without more to interpret one piece of legislation with
reference to another’ ( Independent Institute of Education (Pty) Ltd v KwaZulu -
Natal Law Society and others 2020 (2) SA 325 (CC) para 14). Admittedly, ‘it
may at times be appropriate to consider how another statute deals with a
similar issue ’ (my emphasis), but even then, ‘the latter statute cannot be any
more than an interpretive aid.’ ( Independent Institute of Education supra para
15)

73. The subject ma tter dealt with in s 11 of the BADRA and this statute read as a
whole are unrelated to the subject matter of the Immigration Act. Th e long title
of the BADRA records its overall purpose to be : ‘To regulate the registration of
births and deaths; and to prov ide for matters connected therewith.’

74. Moreover, s s 11(4) and (5) of the BADRA were introduced through an
amendment effected by s 8 of the Adoption Matters Amendment Act 56 of
1998. These amendments ha ve nothing to do with immigration. The ir purpose
is recorded in the long title of the Amendment Act as follows: ‘and to amend
the Births and Deaths Registration Act, 1992, so as to afford a father of a child
born out of wedlock the opportunity to record his acknowledgement of
paternity and his particulars in the birth registration of the child’.

75. Since the BADRA and the Immigration Act serve different object s, a purposive
reading of s 11(5) makes it inappropriate for the Respondents to justify DNA
testing in its context with reference to improved immigration regulation under
the Immigration Act . This is incongruent with a purposive mode of
interpretation.

76. As for the second argument advanced by the Respondents (see above in
paragraph 6 8), I find that it is misconceived for two reasons .

77. First, a grammatical reading of the relevant statutory provisions does not
support the Respondents’ contention. T he wording used in s 11(4A) , and regs
14(1) and (2) related thereto, indicate that the ir provisions do not apply to
situations envisaged by s 11(5) : whereas s 11(4A) applies when an
amendment to a child’s birth certificate is sought with a mother’s consent , s
11(5) applies when no consent is given by the child’s mother .

78. Secondly, for purposes of s 9(1) and s 10 of the BADRA dealing with the initial
birth registration within 30 days after date of birth (see above in footnotes 1
and 2) , proof of paternity through DNA testing is , by operation of law, not
required .

79. For purposes of s 9 and s 10 , consensus between the parents as to the
identity of the father is the standard required by law . If there is consensus with
a child’s mother as to the person with whom she had sexual intercourse and
conceived the child, then the agreed father’s particulars are inserted on the
child’s birth certificate, subject only to the father provi ding relevant
document ation to prove his personal particulars (for eg, by way of a passport
or identity document).

80. This is the legal position which applies to the initial registration of all births ,
irrespective whether the child is one born in or outside of marital bonds, and
regardless of whether the father is a South African citizen or foreign national .

81. Therefore, the Respondents’ contention that DNA paternity testing serves to
protect the integrity of the population register lacks merit. If scientific DNA
testing was vital for this purpose , then it can reasonably be expected that the
legislature would have made it compulsory for all birth registrations ,
regardless of the high levels of indigence in South Africa (see above in
paragraph 65) . That the legislature does not require DNA testing as a stock
standard requirement for all births , speaks volumes about the fact that the
absence of DNA testing is not viewed by the legislature as undermin ing the
population register’s integrity.

82. Respondents’ argument also loses sight of a key fact: the population register ’s
integrity is protected by the fatherhood of a child being confirmed by the upper
guardian of a child, being a high court after it evaluates all admissible
evidence. In some instances (such as, where paternity is disputed , and/or the
presumption in s 36 of the Childr en’s Act does not apply), DNA testing would
probably be required to sustain a finding that an applicant discharge d the
onus of pro ving his paternity of a child whose birth certificate he seeks to
amend by the inclusion of his details as father . That is a f actual enquiry in
each instance . The present matter is not such a case : here paternity is
undisputed by the disputants .

83. Section 11(5) makes no provision for the ‘conclusive proof’ mentioned in s
11(4A) (ie , DNA testing dealt with in reg 14). An interpretation to the effect that
a DNA test is necessary to prove paternity even after a high court confirms
paternity is a construction which would have to be winkled out of contextual
crevices. I n an era of justif ication, I find such an interpretation to be
unjustifiable .

84. Moreover, requiring a DNA paternity test after paternity has been confirmed by
a high court is an absurd result which the legislature could not have
contemplated when it enacted s 11(5) in its c urrent form. See JR de Ville
Constitutional & Statutory Interpretation (2000) at 203 - 204. What possible
purpose would a DNA paternity test serve in such a situation? On this basis
too, the interpretation of s 11(5) contended for by the Respondents is
unjustifiable .

85. To recapitulate : This judgement must not be misunderstood – it does not do
away with DNA testing as a scientific method to prove fatherhood of a child
born outside of marital bonds . This judgment a ffirms that, for a birth certificate
amendment under s 11(4) of the BADRA, s 11(4A) ordain s mandatory DNA
testing. This judgment holds further that there may be instances where, in an
application for relief under s 11(5), a DNA paternity test would be necessary
as part of the overall mosaic of evidence needed to prove fatherhood . Each
case must be decided on its own merits . The kernel of th is judgment on DNA
testing is that once a high court performs its adjudicative role under s 11(5)
and confirms paternity, then , by virtue of the rule of law, its order oblige s
officials a t the Department of Home Affairs to amend the relevant child’s birth
certificate to include his/her father’s d etails without any further proof of
paternity. The high court’s declaratory order under s 11(5) stands as
conclusive proof of paternity.

FIFTH ISSUE: IS THE FIRST APPLICANT ENTITLED TO AN EXEMPTION ORDER
UNDER SECTION 7(2)(c) OF THE PAJA ?

86. In this regard, the salient common cause facts are the following : on 25 July
2024, Second Respondent declined to issue a permanent residence permit
(PRP) to First Applicant who then sought to appeal the adverse administrative
decision. He paid the prescrib ed fee. However, the earliest appointment with
Third Respondent to lodge the internal appeal was 29 November 2024, which
fell outside the 10 -day appeal lodgement period. First Applicant then sought
permission to backdate his appointment so that it fits int o the 10 -day statutory
scheme. This request was refused. First Applicant then lodged his appeal. It
was rejected on the grounds that the appeal was filed late.

87. First Applicant now seeks an order under s 7(2)(c) of the PAJA which would
exempt him from first exhausting all internal appeal remedies with the
Respondents as required by s 7(2)(a) , and for this Court to then adjudicate his
review application for the setting aside of the refusal to grant him a PRP.

88. Respondents contend that this application i s meritless. They contend that First
Applicant fail ed to show the existence of exceptional circumstances . Thus, it is
not in the interests of justice that he be granted an exemption under s 7(2)(c).

89. Section 7(2)(c) of the PAJA received attention recently in CSARS and another
v Richard’s Bay Coal Terminal (Pty) Ltd (CCT 104/23) [2025] ZACC 3 (31
March 2025) . The apex court affirmed its approach in Koyabe v Minister for
Home Affairs (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327
(CC) para 36 , a case relied on by First Applicant in support of his case for
exemption .

90. I find that the facts relied on by First Applicant do not qualify as out of t he
ordinary (‘exceptional circumstances’) to warrant the exemption order sought .
Moreover, n one of the circumstances relied on by him existed before , or at
least when , the review application was filed . In these circumstances, the
interests of justice do not favour granting the exemption order . See NR and
others v Director General: Home Affairs and another (21762/2024) [2025]
ZAWCHC 189 (5 May 2025) para 34. On this basis, the exemption application
fails.

91. As a result, it is unnecessary to cons ider the review application filed of record.

DISCHARGE OF THE INTERIM INTERDICT, OR NOT?

92. On 30 October 2024, an interdict was granted per Goliath AJP by agreement
between the parties . The terms of the interdict were as follows:

‘6. The First and Second Re spondents are hereby interdicted and
restrained from initiating any process or taking any action to deport or
otherwise declare the First Applicant as an undesirable person within
the Republic of South Africa, pending the finalisation of this application. ’

93. At the hearing, the applicants urged me not to allow steps to be taken to
deport First Applicant to Zambia while his application for a PRP is not
finalised . Second Applicant, in particular, argued that deportation would be
against the best interests of PKM and VKM – the First Applicant supports
them financially and he has a close bond with his sons which will be broken if
deportation occurs.

94. Although I have not found in his favour on the immigrat ion issue, the
declaratory relief under s 11(5) entitles First Applicant , for the first time, to
have his particulars registered on PKM and VKM ’s birth certificate. As such,
he is also now entitle d to apply for the right to reside in South Africa bas ed on
his recognised paternity. See Dawood v Minister of Home Affairs supra.

95. At the hearing, First Applicant informed me that he intends to apply for a PRP
on the basis of his paternity of PKM and VKM if I grant him the necessary
relief under the BADRA. If the interim interdict is not extended, then it will
result in First Applicant being deported and his victory here would be hollow
and his sons would be considerably worse off financially than they already are
at present.

96. Taking all this into account, I find that, in the interests of justice, an extension
of the interim interdict ought to be granted for 12 months. An order to this
effect will be granted on the basis that First Applicant takes the necessary
steps to apply for his PRP within a de fined period. It goes without saying that
the First Applicant ought to be entitled to apply to this Court for the further
extension of the interim interdict on good cause shown at the relevant time, if
needs be.

COSTS

97. The issue of costs was debated at the hearing. First and Second A pplicants
seek an award of costs against the Respondents, and vice versa.

98. It is long established in our law that costs is a matter within a court’s wide
discretion . That discretion must be exercised judiciously having due regard for
accepted legal principles. See Kruger Bros and Wasserman v Ruskin 1918
AD 63 at 69. In the present -day context of high court litigation , the sample list
of relevant factors enumerated in Uniform Rule 67A(2) is a useful starting
point . Another rele vant factor is that costs usually follow on success. In this
case, the protagonists have all enjoyed some measure of success.

99. I am disinclined to grant costs against the applicants. They pursued this
application to enfo rce constitutional rights ( including , the rights to dignity and
to just administrative action). They acted not only for their own benefit but for
the benefit of their sons (ie, PKM and VKM) and , to some extent, for the
benefit generally of fathers and thei r children born out of marital bonds. It is an
established principle that courts ought to be slow to grant costs against
litigants enforc ing constitutional rights. See Sanderson v Attorney -General,
Eastern Cape 1997 (12) BCLR 1675 (CC) paras 43 - 44.

100. As litigants without legal representation, the applicants are not entitled to
costs, save for necessary disbursements if I consider that the circumstances
here merits such an award . I do. See Milnerton Riding Club NO v Milnerton
Riding School (Pty) Ltd and others [2022] ZAWCHC 238 para 13.

101. In reaching my decision, I considered the contents of the court file, including
all prior court appearances and the reasons for postponements and delays in
the finalisation of this matter. I also considered the complexity of the matter,
and the conduct of the parties on both sides. Despite their meagre finances, I
am particularly struck by the extent to which the applicants have gone to
ensure that th is matter was ready for hearing and that the court file was in
order.

102. Even though they are not lawyers and have no lega l training, their compliance
with this Court’s orders, rules , and practice directives has not gone unnoticed .
They index ed and paginat ed the court file at my chambers ; filed practice
notes; b ound the court papers neatly in a lever arch file with each court
application separated by dividers which they provided at their expense ; and
deliver ed detailed heads of argument , including a post -hearing note at my
request .

103. During my engagement with the First Applicant at the hearing ,12 he explained
that he studied the court rules and practice directives because he considers it
a sign of respect to this Court and its processes for the applicants to comply
therewith as lawyers would in the course of presenting their cases before this
Cour t. It became evident to me that his respect for this Court was part of his
motivation for taking issue with the Respondents’ non -compliance with this
Court’s order that formed the subject of their condonation application.

104. Consequently, I award the applica nts costs but only to the extent of the ir
disbursements incurred in this application as a whole (ie, in Part A and Part
B).

ORDER OF COURT

105. In the result, I grant the various orders outlined earlier under the heading
‘Order of Court ’.


_____________________
FAREED MOOSA
ACTING JUDGE OF THE HIGH COURT


Appearances

For First Applicant : In person


12 At the hearing , First Applicant sought permission to represent the Second Applicant. I
declined this request , as I am obliged to do . See CSARS v Van der Merwe 85 SATC 10 para
45.
For Second Applicant: In person

For Respondent s: Ms D. Murote
(First and second respondents )
Instructed by: The Office of the State Attorney, Cape Town .