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
GAUTENG DIVISION, PRETORIA
CASE NO:34130/2025
In the matter of:
M[...] Z[...] Applicant
And
T[...] P[...] M[...] Respondent
Delivered: This judgment is handed down electronically by circulation to the Par-
ties/their legal representatives by email and by uploading to Caselines. The date and
time of hand-down is deemed to be 14:00 on 23 March 2026.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
………………………...
DATE: 23/03/2026 LENYAI J
LENYAI J
[1] This is an application by M[...] Z[...] Z[...] (the applicant), seeking the court to
compel T[...] P[...] M[...] (the respondent) to co-operate and assist the applicant by
deposing to an affidavit in support of an application by her to the Department of
Home Affairs to change the parties’ child’s surname (S[...] L[...] M[...]) from that of the
respondent (the father) to that of the applicant (the mother).
[2] The applicant submits that she and the respondent were involved in a roman-
tic relationship and a girl child was born from that relationship. The child was born on
15 May 2023 and the child’s birth registration subsequently took place with the De-
partment of Home Affairs on 17 May 2023.
[3] The applicant further submits that the respondent made her to believe, during
the life span of the relationship but before the child was born, that he would send his
family to her family for purposes of paying damages for the child born out of wedlock
and lobola in accordance with the African tradition and custom. This would, accord-
ing to both their intentions, subsequently result in their marriage.
[4] The child was born before the envisaged marriage took place and she was
registered under the respondent’s surname even though the parties were not mar-
ried. The applicant was informed by her mother on 19 May 2023 that a child that is
born out of wedlock should bear the surname of the mother as opposed to that of the
father. The respondent was then asked by the applicant to assist her in changing the
child’s surname from that of the respondent to that of her’s.
[5] The applicant submits that the respondent was however not keen on changing
the child’s surname reasons being that the parties were planning on getting m arried
someday and that such change would make him feel like his child is being taken
away from him.
[6] The respondent’s version is that the parties got into a romantic relationship
around May 2022. This relationship developed and evolved over time and just like
many other relationships, the parties explored the possibilities of starting a family to-
gether. It was around September 2022 when the parties realised that they were ex-
pecting a child and they both apprised their respective families of such expectancy.
[7] During the period of October 2022, the respondent informed the applicant of
the customary and/or cultural process that ought to be followed in the light of preg-
nancy. This process entails that in instances of pregnancy, the family of the ex-
pectant mother ought to approach the family of the expectant father to inform them
about the expectant child. This is a long -standing customary practice and is consid-
ered an important step in fostering respect, accountability and the formal recognition
of the unborn child within both families.
[8] The respondent submits that he brought to the attention of the applicant that
such cultural practice is in respect of the fact that pregnancy out of wedlock is
frowned upon by many African customs and to rectify such mistake, the relevant
families ought to engage in a dialogue regarding the matters of responsibility,
acknowledgement and future welfare of th e child in question. Such process was
communicated to the applicant with the hope of it being adhered to , to facilitate the
formal recognition of the child within the respondent’s family and his cultural lineage.
[9] Around November 2022, the respondent submits that he further escalated
these cultural practices and customs talks with the applicant and her mother to which
she respondent that such was not necessary and that both parties are free, and
should proceed as they see fit, to exercise their parental ri ghts and responsibilities
jointly regarding the child in question.
[10] In January 2023, the respondent further submits that he indicated to the appli-
cant the significance of compliance with his cultural practices and norms regarding
the pregnancy and conveyed the drawbacks of non -compliance, which is lack of for-
mal recognition of the child by his family in accordance with their traditions and sub-
sequently, lack of established relationship between the child and his extended family.
This was not a threat or rejection, but rather an indication of the reality that would fol-
low in accordance with his African tradition, culture and customs.
[11] The respondent submits that after the registration of the child in his surname,
he was informed that the applicant’s mother was unhappy with the fact that the child
in question was registered under his surname despite no marriage taking place be-
tween the parties , he was perplexed and emotionally conflicted because the appli-
cant’s mother had previously told him and the applicant that they are free to exercise
their parental rights and responsibilities as they see fit regarding the child in ques-
tion.
[12] He further submits that f ollowing the change in the applicant’s mother stance,
this a lso led to a change in the applicant’s stance whereby the applicant started
adopting her mother’s position and thus pulling away from the cooperative and mu-
tually respectful co -parenting dynamic that existed between them. The applicant’s
change in position became clear and evident when she started questioning the
child’s surname registration. This was confusing because the parties had previously
agreed, to register the child under the respondent’s surname and this was lawfully
done in accordance with the Births and Deaths Registration Act 1992.
[13] The respondent despite the change in the applicant’s mother stance, was still
devoted to formalising his relationship with the applicant through marriage. The posi-
tion surrounding the child’s surname was not base d solely on fact that the respond-
ent will play an active role in the child’s life, but also on the belief of a continued
growth of the parties’ family unit in a stable and committed manner.
[14] The respondent submits that it appears that the applicant’s position regarding
the child’s surname is not guided by the child’s interests, but rather by external family
pressure and cultural expectations tied to the parties’ unmarried status. It is evident
that the fact that the parties are not married is the reason why the current dispute ex-
ists and it is not in any way in the interests of the child as alleged by the applicant.
[15] The issue to be determined by the court is the following:
1. Can reliance be placed on misrepresentation and/or false pretence as a de-
fence to effect a child’s surname registration reversal in the instance where a
promise of marriage or lobola was not followed through?
[16] The respondent raised the following special plea of non-compliance:
1. The respondent alleges that the applicant failed to comply with Rule 4(1)(a) of
the Uniform Rules of Court, which has to do with the ‘service’ of process in the
legal proceedings.
[17] The respondent maintains that the applicant failed to comply with Rule 4(1)(a)
of the Uniform Rules of Court. The respondent submits that this is because the sher-
iff’s return of service indicates no efforts made to achieve personal service on the
respondent and that there are no reasons put forward by t he applicant as for why
personal service could not be achieved. The respondent argues that asserting that
service was made to the purported respondent’s brother ‘S M[...]’ is not enough.
[18] The respondent avers that proper service in family law proceedings is very
crucial because it ensures that the rights and responsibilities of the parties involved,
in instances concerning minor children, are taken into consideration by properly noti-
fying t he parties concerned and thus enabling them to respond appropriately, ac-
cordingly and timeously – this is in line what was said in Moila v Moila 1997 (1) SA
415 (O). Further, the respondent submits that courts have repeatedly advocated for
strict procedural requirements compliance in such instances. The respondent further
submits that in the case of Minister of Home Affairs v Nikolovski 1996 (1) SA 678 (A),
the Appellate Division held that personal service should always be the first option
where it is reaso nably possible to achieve before other means of service can be ex-
plored.
[19] The respondent further submits that Rule 4(1)(a) of the Uniform Rules of
Court requires that reasons be given where personal service could not be realised by
the sheriff. The sheriff’s return is then required to outline those means, attempts, or
efforts made to realise personal service and if such was unsuccessful, an indication
of any person, other than the respondent, who was served instead. With that said,
the respondent submits that this application should be dismissed for non -compliance
with the above Rule, simply because the Sheriff’s return does not stipulate any indi-
cation made to ensure personal service on the respondent or whether such service
was appropriate and authorised.
[20] The respondent submits that the address given in the affidavit is not the ad-
dress where he currently resides nor receive process. Further, the listing of such ad-
dress cannot be relied upon for purposes of accuracy and the validity of Rule 4(1)(a).
In conclusion, the respondent submits that due to this non -compliance, the service in
question is defective and as a result, renders the application in question irregular and
question is defective and as a result, renders the application in question irregular and
should be dismissed and struck from the roll.
[21] The applicant outlines the rules regarding service, that of course, personal
service is preferred and should be made where possible. However, should such not
be possible, the Sheriff must indicate in his return that such was not possible or that
service was made to another person other t han the person in question. Accordingly,
proper return of service is one which indicates that personal service was envisaged,
but because the person in question could not be found to realise personal service,
such was not possible.
[22] The applicant submits t hat it is misleading and absurd for the respondent to
allege non-compliance with Rule 4(1)(a) of the Uniform Rules of Court because the
Sheriff’s return of service dated 24 March 2025 indicates that service was made at
the address given by the respondent in paragraph 1 of the answering affidavits and it
was made to the respondent’s brother who is over the age of 16 on 19 March 2025.
The respondent was thus properly served in accordance with the Rule in question.
[23] Rule 4 of the Uniform Rules of court provides as follow:
“Service
(1)
(a) Service of any process of the court directed to the sheriff and subject to
the provisions of paragrap h (Aa) any document initiating application
proceedings shall be effected by the sheriff in one or other of the fol-
lowing manners -
(i) By delivering a copy thereof to the said person personally : Pro-
vided that where such person is a minor or a person under legal
disability, service shall be effected upon the guardian , tutor, cu-
rator or the like of such minor or person under disability;
(ii) By leaving a copy thereof at the place of residence or business
of the said person, guardian, tutor curator or the like with the
person apparently in charge of the premises at the time of deliv-
ery, being a person apparently not less than 16 years of age.
For the purposes of this paragraph when a building other than a
hotel, boarding -house, hostel or similar residential building is
occupied by more than one person or family , “residence” or
“place of business” means that portion of the building occupied
by the person upon whom service is to be effected;
…”
[24] Upon scrutiny of the answering affidavit at paragraph 1 the respondent
averred as follows:
“I am an adult male, Project Manager residing at Unit 7[…] C[…] l[…] 1[…]
W[…] Avenue Craigavon AH, Fourways. I am duly authorised to depose to
this affidavit.”
[25] The return of service indicates that service was made at the same address as
the one stated in the answering affidavit and the sheriff certified as follows:
“It is hereby certified as follows:
That on this 19th day of March 2025 at 09:08 at Unit 7[…], C[…] L[…], 1[…]
W[…] AVENUE, CRAIGAVON A being the place of residence of T[...] P[...]
M[...], and during his temporary absence a copy of the NOTICE OF MOTION
was served upon MR S M[...] (BROTHER), a person apparently not less than
sixteen years of age and apparently residing there, after the original document
was displayed and the nature and contents thereof was explained to him.
Rule 4(1)(a)(ii).
Please note the correct address as mentioned above where service took
place.”
[26] It is quite clear to the court that based on the return of service, service took
place at the address that the respondent has deposed to under oath in the
answering affidavit as his place of residence. Furthermore, the document was
served upon his brother who is apparently older than sixteen years and the
nature and contents of the document were explained to him.
[27] I am satisfied that service was rendered in strict compliance with Rule
4(1)(a)(ii) of the Uniform Rules of court and the respondent’s special plea of
non-compliance with Rule 4(1)(a) lacks any merit and stands to be rejected by
the court.
[28] The applicant submits that the fact that the respondent said he remained
‘steadfast in his commitment to formalise our relationship through marriage’ despite
the applicant’s mother expressing displeasure over the fact that the child was regis-
tered in the respondent’s surname despite no marriage or lobola preceding such reg-
istration is the reason why the applicant was made to believe, at all ma terial times,
that the respondent was going to send his family for purposes of paying lobola and
asking for her hand in marriage in accordance with the African traditional custom.
The applicant submits that the respondent fraudulently misrepresented his true intent
to her.
[29] The applicant submits that the test whether fraudulent misrepresentation is
material to the extent that the deceived party was influenced to believe and because
of that believe entered into an agreement in question, should be a subjective test: did
the representee believe the misrepresentation?
[30] The applicant further sub mits that according to the Farlam and Hathaway
commentary, for fraud to exist in instances relating to contracts, there should be a
precontractual misrepresentation of a false act. Such representation is to be made
with knowledge that it is untrue and inte nded that it be acted upon. The representa-
tion must be one which would influence a reasonable person to act on it, thus being
material. The representation should be one of the reasons why the representee en-
material. The representation should be one of the reasons why the representee en-
ters into the agreement in question. The represent ation can either be express or
through a conduct. Lastly, the representee must be ignorant of the falsity of the rep-
resentation.
[31] The applicant submits that the respondent made a representation to her,
which the respondent knew to be false, that the respondent is intending on paying
lobola and would also ask for her hand in marriage. All these communications took
place prior to the registration of the child under the respondent’s surname. Due to
the material representation by the respondent, she was consequently induced to reg-
ister the child under the respondent’s surname.
[32] The applicant submits that she only became aware that the applicant was ly-
ing about paying lobola and marrying her after the child in question was registered
under the respondent’s surname and after her mother expressed displeasure over
such registration which was not preceded by the respondent’s undertakings. The ap-
plicant further avers that negligent misrepresentation in the f orm of omission can
take place through non-disclosure of information that is ought to be disclosed due to
a legal duty by the respondent to her. In this case, the respondent failed to disclose
to her the fact that he was untruthful about his intentions to pay lobola and marry her.
[33] The applicant further submits that the respondent cannot allege that it is un-
fair, unconstitutional and outdated for the child to bear his surname only if he had
married the mother, because the respondent made those represe ntations voluntarily
and was aware that he was being untruthful with his intentions. The respondent still
has not taken any initiatives to fulfil his undertakings made to her.
[34] The applicant in essence avers that because the surname registration of S[...]
under the respondent’s name was done due to misrepresentation made by the re-
spondent to her, such agreement between the parties should be deemed voidable.
[35] In this regard, the applicant submits that due to the fact that the registration of
the child’s surname under the respondent’s surname took place because of misrep-
resentation which the respondent intended to do in the future, she is then in the right-
ful position to be afforded restitution by a way of change of the minor child’s surname
from that of the respondent to that of hers.
[36] The applicant submits that this restitution can be effected by instructing the
respondent to make a deposition to an affidavit to the Department of Home Affairs
supporting her application to change the surname of the child in question. Further,
the applica nt argues that the respondent cannot rely on simulated and fraudulent
misrepresentation for his surname to subsist on the minor child in question
[37] The applicant further submits that the respondent was negligent because he
did not do anything to safeg uard her and her family’s custom and tradition against
any foreseeable harm likely to arise from his misrepresentation that led her and her
family allowing for his surname to be attached to the minor child in question despite
no marriage or lobola taking place prior to that.
[38] The applicant further submits that the respondent failed to comply with section
26 of the Children’s Act 38 of 2005 and because of such non -compliance, he cannot
assign the blame on to her that she was supposed to inform him what procedure to
follow if he wanted the minor child to have his surname. The applicant further avers
that the respondent can still exercise the rights afforded by this section in the future,
if he complies with the requirement stipulated in section 26(1). This section stipulates
the following:
“26 Person claiming paternity
(1) A person who is not married to the mother of a child and who is or
claims to be the biological father of the child may-
(a) apply for an amendmen t to be effected to the registration of birth of the
(a) apply for an amendmen t to be effected to the registration of birth of the
child in terms of section 11 (4) of the Births and Deaths Registration Act,
1992 (Act 51 of 1992), identifying him as the father of the child, if the
mother consents to such amendment; or
(b) apply to a court for an order confirming his paternity of the child, if the
mother-
(i) refuses to consent to such amendment;
(ii) is incompetent to give consent due to mental illness;
(iii) cannot be located; or
(iv) is deceased.”
[39] The respondent submits that in the case of Orban v Stead 1978 (2) SA 713
(W), the court held that for something to constitute an actionable misrepresentation,
that something must be nothing but a fact. With that said, a future intention does not
constitute a fact because it can, at a later stage, be realised or remain unfulfilled. As
a result, the respondent then avers that an intention to marry is not legally binding,
but rather aspirational and cannot be said to be a fact that amounts to misrepresen-
tation in this case. With that said, the respondent argues that the applicant’s claim of
misrepresentation is not relevant to the registration of the minor child’s surname as
this claim is unsubstantiated, speculative and irrelevant.
[40] The respondent submits th at the applicant bears the onus of proving that the
respondent was being untruthful about his intention to marry her at the time of mak-
ing this alleged misrepresentation and she failed to discharge such onus. The re-
spondent further submits that the fact that he was still willing to formalise the rela-
tionship through marriage with the applicant, despite the expressed displeasure by
the applicant’s mother regarding the minor child’s surname registration is an i ndica-
tion that the respondent was not in any way being deceitful to the applicant about his
intentions and that this willingness is consistent with the possibility of a later change
in personal circumstances.
[41] The respondent submits that the threshol d for fraudulent misrepresentation is
not only limited to a false statement, but also include scienter, knowledge of the
not only limited to a false statement, but also include scienter, knowledge of the
falsehood and intent to induce the other party to act on it. The respondent avers that
the applicant failed to satisfy this threshold, because there is no evidence before
court in support of this claim.
[42] The respondent submits that a promise to marry a person cannot be treated in
a similar manner as other contracts or agreements to the extent that such a promise
would give rise to contractual remedies. He further submits that courts distance
themselves from treating marriage promises and engagements as agreements ca-
pable of sustaining fraud or damages claims in the absence of actual contractual
breach coupled with clear and malicious intent.
[43] The respondent further submits that his intention to marry the applicant had
nothing to do with the registration of S[...] under his surname and that the applicant
failed to establish a direct causal connection between the intention in question and
the registration of the child thereof. He further submits that the registration took place
because of joint parental discretion in accordance with the Births and Deaths Regis-
tration Act 51 of 1992. He further avers that because of such joint parental discretion;
the applicant cannot invalidate such registration beca use of interpersonal disap-
pointment. He concludes by submitting that the registration of the child was not in
any way linked to the intention to marry the applicant as she alleges, because such
expectation is speculative and lacks corroborative evidence.
[44] The respondent submits that the registration of the child was not preceded by
a lobola or marriage promise, but she willingly proceeded with the registration of the
minor child under the respondent’s surname. The applicant’s later change of mind as
influenced by her mother’s expressed displeasure cannot retrospectively convert a
freely made decision into a claim of deception.
[45] The respondent submits that the employ of the doctrine of fraudulent misrep-
resentation as the basis for altering the minor child’s surname constitutes a misuse
resentation as the basis for altering the minor child’s surname constitutes a misuse
of this doctrine. He submits that this is because courts have been cautioning against
the expansion of the concept of fraud to areas that are driven by emotional and cul-
tural factors such as domestic relationships and because fraud is an exceptional
remedy, it should only be relied upon in instances where clear, direct, and material
deception can be proved.
[46] The respondent further submits that in the case of Flour Ruto Mills (Pty) Ltd
v Moriates and Another 1957 (3) SA 113 (T) , the court set out the following stand-
ard of pleading and proof which was has not complied with by the applicant ; “fraud
must be distinctly alleged and proved, and it is not allowable to leave it to be inferred
from the facts”. He further submits that the applicant was not in any way, be it formal,
legal or documented manner, coerced or misled in to registering S[...] under his sur-
name, she willingly did so.
[47] The respondent submits that for one to rely on misrepresentation, the follow-
ing requirements of fraud must be met, namely: intentional misstatement of a present
fact, materiality, inducement, and reliance. He further submits that registration of a
child’s surname is not attributable to matrimonial promises nor subjective feelings of
betrayal but rather to the Births and Deaths Act 51 of 1992.
[48] The respondent further submits that in the case of Ex parte Minister of Wel-
fare and Population Development 2004 (6) SA 505 (CC), the court held that the
retainment of a surname by a minor child is crucial and in the best interests of the
child for purposes of paternal affiliati on which will ensure the facilitation of identity
continuity, emotional stability, and administrative certainty.
[49] The respondent submits that the alteration of the child’s surname should be
influenced or driven by the best interests of the child and in accordance with the le-
gal process grounded in administrative law principles pursuant to the Births and
Deaths Act 51 of 1992 as opposed to being dictated by fluctuating interpersonal dy-
Deaths Act 51 of 1992 as opposed to being dictated by fluctuating interpersonal dy-
namics between parents such as is the case in this instance. He further avers that
this is because should the alteration of the child’s surname be granted based on fluc-
tuating interpersonal dynamics between the parents, this would establish a danger-
ous precedent whereby Home Affairs’ administrative mechanisms are abused as a
means of expressing emotional or m oral grievance, rather than for the legitimate
regulation of identity documentation. This would lead to a deviation of the main ob-
jective of administrative processes which its intent is to function objectively and in the
service of legal certainty and administrative efficiency.
[50] The respondent submits that in the case of Minister for Welfare and Popula-
tion Development v Fitzpatrick and Others (CCT08/00 ) [2000] ZACC 6; 2000 (7)
BCLR 713 (CC); 2000 (3) SA 422 (CC) (31 May 2000), the Constitutional Court held
that matters relating to the identity and rights of children should not be taken ad-
vantage of in a sense that the parents use these as a battleground for parental con-
flicts. Rather, such matters should be approached and dealt with accordingly taking
into consideration the best interests of the child. He submits that the applicant is not
thinking about the best interests of the child in her quest of asking the court for the
surname alteration, but she is rather influenced by external factors that ha ve nothing
to do with the child, such as her feelings regarding the failed romantic commitment.
[51] The respondent submits that if there is no evidence in support of the appli-
cant’s claim that he was untruthful when he expressed his intention of marrying her,
then there is no actionable misrepresentation that took place. As a result of such, he
submits, the claim is not legally recognisable to effect the reversal of a valid adminis-
trative act made by both parties to register the child under his surname.
[52] To conclude, the respondent submits that the birth registration process should
not be used as an instrument that can be enlisted by parties or parents whenever
not be used as an instrument that can be enlisted by parties or parents whenever
they experience interpersonal romantic relati onship breakdown or conflicts as this
will be at the expense of children. He submits that the legal system can avoid such
by ensuring that undocumented and legally unenforceable personal and cultural ex-
pectations do not override statutory frameworks and the rights of children.
[53] Section 28(2) of the Constitution of the Republic of South Africa, 1996
reads as follows; “A child’s best interests are of paramount importance in every mat-
ter concerning the child”
[54] Section 10 of the Births and Deaths Registration Act 51 of 1992 outlines
the following regarding the designation of a surname to a child:
"10. Notice of birth of child born out of wedlock
(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 re-
garding himself upon the notice of birth, under the surname of the person who
has so acknowledged.
(2) Notwithstanding the provisions of sub-section (1), the notice of birth may
be given under the surname of the mother if the person mentioned in sub-
section (1)(b), with the consent of the mother, acknowledges himself in writing
to be the father of the child and enters particulars regarding himself on upon
the notice of birth."
[55] According to this provision, a child born out of wedlock is entitled to be regis-
tered under the mother’s surname. However, this provision makes it possible for the
child to be registered under the father’s surname despite no existence of marriage
between the parents in question. This exception is possible where both parents, up-
on an agreement, request the child to be registered under the father’s surname.
[56] Section 25(1) of the Births and Death s Registration Act 51 of 1992 out-
lines the following with regards to surname alteration:
“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 exemp-
tion from such consent; or
. . . “
[57] This provision provides one of the ways in which a surname of a minor can be
altered. It outlines that such alteration in this instance is subject to the unmarried fa-
ther’s consent. Where such consent is withheld, the party wishing to alter the minor’s
child ought to approach a High Court to issue an order where such consent can be
overridden.
[58] In the case of Damon v Dasram - 2014 JDR 2708 (FB) – par 23, the appli-
cant was also seeking for the same remedy as the one prayed for by the applicant in
this case. In this case, the court granted an order in favour of the applicant because
in this case, the all egations made against the respondent in support of the applica-
tion included; withholding consent which was required for purposes of issuing pass-
port to the child for travelling purposes and the respondent in that case also withheld
consent required for pur poses of registering the minor child in a pre -primary school.
The court was of the view that the above allegations were enough to warrant an ex-
emption of the natural father’s consent giving effect to the alteration of a minor child’s
surname without the fa ther’s consent as such would be in the best interests of the
child.
[59] In the case of L v H and Another (2205/2016) [2018] ZAKZDHC 61 (28 No-
vember 2018) – par 78, the court held the following regarding how broken relation-
ships can lead to the children born out of those relationships being used as weapons
by either parent:
“[76] Given the nature of the relationship between the parties various judgments and
various interlocutory applications are such that the relationship is acrimonious and
four years af ter the initiation of the investigation I am once again reminded of the
views expressed by Findlay AJ in W v S (supra) at 491D-F where he says the fol-
lows:
‘The potential for disagreement and conflict as to decision -making and temptation to
use the child as a weapon against each other seem to me, having regard to human
nature, to be real difficulties which can militate against such a regime being in the
best interests of a child; the more so where the parents may not have parted on good
terms and the re may be a measure of friction between them. This danger is, in my
view, heightened where the parents come from different racial, cultural and social
backgrounds and may therefore be, to some extent, subject to the pressures of their
respective environments.’”
[60] According to this provision, parents have the tendency of fighting each other
using the children in the case where their relationships do not work out. This is
where a parent will try to do something against the other parent, masking it to be in
the best interests of the child, when such is a retaliation of some sort against the
other parent. Parents usually abuse the concept of “best interests of the child” amid
their own conflicts or disagreements and courts should be mindful of this fact.
[61] Fraudulent misrepresentation is defined in the following manner - Fraudulent
misrepresentation definition published by LexisNexis Commercial expert:
“Fraudulent misrepresentation is a misrepresentation made where the representor
knows the statement is false. The required elements for fraudulent misrepresentation
are: there must have been a statement, the statement must have been unambigu-
ous, the statement must have been false, the statement must be one ‘of fact’, the
statement must have been addressed to the party misled, and the statement must
have induced the claimant to enter into the contract. The representation need not
have been the only inducement to enter into the contract.”
[62] In the case of S v M (Centre for Child Law as Amicus Curiae) - 2008 (3) SA 232
(CC), the court held the following:
“ [20] No constitutional injunction can in and of itself isolate children from the
shocks and perils of harsh family and neighbourhood environments. What the
law can do is create conditions to protect children from abuse [23] and maxim-
ise opportunities for them to lead productive and happy lives. Thus, even if the
State cannot itself repair disrupted family life, it can create positive conditions
for repair to take place and diligently seek wherever possible to avoid conduct
of its agencies which may have the effect of placing children in peril. It follows
that s 28 requires the law to make best efforts to avoid, where possible, any
breakdown of family life or parental care that may threaten to put children at
increased risk. Similarly, in situations where rupture of the family becomes in-
evitable, the State is obliged to minimise the consequent negative effect on
children as far as it can.”
[63] The applicant, in one of her submissions, is alleging that changing S[...]’s sur-
name from that of the respondent to her surname will be consis tent or in compliance
with section 10 of the Births and Deaths Registration Act 52 of 1992. This argument
implies that there is currently no compliance with the section, which is flawed be-
cause the registration in question came into effect in accordance wi th section
cause the registration in question came into effect in accordance wi th section
10(1)(b). According to Section 10(1)(b) of the Births and Deaths Registration Act 51
of 1992, both the applicant and respondent are legally allowed to register their minor
child in the respondent’s surname despite their unmarried marital status provided
that the mother agreed to such. This is how S[...] was registered with the applicant’s
--
consent, which means that the registration is lawful, legal and thus in compliance
with the section in question.
[64] The applicant is asking for S[...]’s surname alteration, and this is where Sec-
tion 25 of the Births and Deaths Registration Act 51 of 1992, although not expressly
indicated by the applicant, becomes relevant. Section 25(1)(c) allows for an exemp-
tion, granted by a High Court order , to the circumvention of the consent requirement
of the natural father of the minor child in the case of surname alteration. It is common
cause that any person who initiates a civil action before a court of law ought to
prove, on a balance of probabilitie s, his or her case for the judgement to be in his or
her favour.
[65] How this exemption can be granted is reflected in the case of Damon v
Dasram - 2014 JDR 2708 (FB) where it can be extrapolated that for the natural fa-
ther’s consent to be exempted in t he case of altering the minor child’s surname in
accordance with section 25(1)(c) and, there needs to be justifiable reasons or factors
reinforcing the claim made by the applicant. The court in the Damon v Dasram case
granted the order to alter the minor c hild’s surname in order to ensure that the appli-
cant does not have to go through all the troubles that she went through because of
lack of consent from the natural father of the minor. These issues included withhold-
ing consent which was required for purpos es of issuing passport to the child for trav-
elling purposes and the respondent in that case also withheld consent required for
purposes of registering the minor child in a pre-primary school.
[66] In this current case, in one of the submissions, the appl icant submits that this
application is in the best interests of the child because if she was to travel with the
child in question, this would be problematic because consent from the respondent
would be required before the child can be allowed to travel. Th is argument, at this
would be required before the child can be allowed to travel. Th is argument, at this
stage, holds no weight because no one knows whether the respondent is going to
give or deny consent when such an instance arises. The court cannot simply penal-
ise the respondent prematurely on something that is speculatively yet to hap pen.
The reasons submitted before court in Damon v Dasram case were reasonable
enough to grant the order. The reasons before this court are however not reasonable
enough to warrant an order in the applicant’s favour because they are, at this stage,
speculative in nature. In essence, the applicant has not proved her case on a bal-
ance of probabilities.
[67] The applicant, again, in one of her arguments submits that the respondent
neglected or disrespected her family’s customs and tradition by not sending hi s fami-
ly for purposes of paying lobola and asking for her hand in marriage. This argument
is also flawed because in this case it amounts to double standards as the respondent
is expected to adhere to her family ’s tradition, but the applicant’s family are a lso dis-
regarding the respondent’s family tradition and customs by not going to the respond-
ent’s family to formally lodge or inform the respondent’s family of the expectant child.
[68] The applicant in this case exhibits the fear expressed in the case of L v H and
Another, in a sense that the application in question regarding surname alteration
was not in any way influenced by S[...]’s interests but rather driven by the fact that
the respondent never fulfilled his intentions of marrying her. The applicant is thus us-
ing S[...] as a weapon against the respondent due to an unfulfilled marriage promise.
[69] The applicant in one of her submissions submits that the respondent’s inten-
tion, which he made while they were still in a relationship, to marry her amounts to
fraudulent misrepresentation because the respondent allegedly knew that he was
being untruthful about such intentions. Material fact in fraudulent misrepresentation
is def ined as one which induces the misled party to enter into an agreement. The
applicant submits that she registered the child under the respondent’s surname after
the he informed her about his intentions. The respondent submits that he never ex-
the he informed her about his intentions. The respondent submits that he never ex-
pressed these i ntentions for purposes of the registration of the child’s surname as
alleged by the applicant, but rather that these are two separate and unrelated occa-
sions. The applicant submitted no evidence to prove that the respondent misled her
to enter into the agreement to register their child in the respondent’s surname.
[70] Relationship success is not guaranteed. Majority, if not all people, can attest
to this. Romantically involved individuals do not plan for relationships not to work out,
they instead hope that those relationships become successful. Unfortunately, be-
cause of how romantic relationships work, that does not always happen. In simple
terms, you can't predict the future of a relationship. With that said, just because the
respondent ended up deciding not to go forward with his intention of marrying the
applicant, this sudden change of heart and mind does not necessarily imply that the
respondent lied about his intention to marry the applicant. At the time he expressed
his intentions, it is very likely that he was genuine, unless proven otherwise, and
considering how relationships fluctuate, it is understandable or was foreseeable that
at some point that the parties would likely go their separate ways.
[71] Only if it was possible to guarantee success of relationships, then one would
be able to successfully rely on a fraudulent misrepresentation claim in the case of
marriage. There is no evidence to the effect that the respondent was untruthful when
he expressed his intentions to marry and pay lobola for the applicant. The claim by
the applicant that she only became aware that the respondent was untruthful about
his intentions only after the registration of their child’s surname under the respond-
ent’s and after her mother expressed displeasure regarding the registration is not
proof that he was untruthful about his i ntentions. In essence, the respondent’s inten-
tions do not amount to material fact and such claim by the applicant is not sufficient
to warrant the court to uphold the applicant's claim regarding fraudulent misrepre-
sentation
[72] What is to be taken into consideration in this case is the best interests of the
minor child in accordance with Section 28(2) of the Constitution of the Republic of
minor child in accordance with Section 28(2) of the Constitution of the Republic of
South Africa. The respondent correctly submits that indeed the retainment of his sur-
name by the child in question is in the best interests of the child as this would allow
the child to have identity continuity, emotional stability and administrative certainty.
This submission correctly reflects the best interests of the child in this case. It is also
important to bring to the fore that the concept of ‘the best interest’ is very broad and
indeterminate. This concept is mostly driven by factors such as cultural, social, polit-
ical and economic conditions and the submission made by the respondent fal ls with-
in the cultural and social part. The reasons given by the applicant do not satisfactori-
ly capture the notion of the ‘best interests of the child’ hence the court’s decision.
[73] Under the circumstances the following order is made:
1. The application is dismissed with costs on a party and party scale.
______________
MMD LENYAI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
Counsel for Applicant: Adv M Mlisa-
na
Instructed by: Sijako Attorneys Inc
Counsel for Respondent: Mr Lekalake
Instructed by : Lekalake Attorneys
Inc
Date of hearing: 10 November 2025
Date of Judgement: 23 March
2026