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[2014] ZAWCHC 171
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VR v Minister of Home Affairs and Others; InRe: CT and Another v Minister of Home Affairs and Others; InRe: SM and Another v Minister of Home Affairs and Others; InRe: SG and Another v Minister of Home Affairs and Others (10171/2014, 11149/2014, 11148/2014 ,12008/2014) [2014] ZAWCHC 171 (14 November 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case no:
10171/2014
DATE: 14 NOVEMBER
2014
In the matter
between:
VR
.......................................................................................................
Applicant
And
THE MINISTER OF
HOME AFFAIRS
....................................
First
Respondent
THE DIRECTOR
GENERAL OF THE
................................
Second
Respondent
DEPARTMENT OF
HOME AFFAIRS
THE MINISTER OF
SOCIAL DEVELOPMENT
...................
Third
Respondent
THE CHIEF
IMMIGRATION OFFICER, CAPE TOWN
......
Fourth
Respondent
INTERNATIONAL
AIRPORT
And
Case no:
11149/2014
In the matter
between:
CT
...............................................................................................
First
Applicant
LT
...........................................................................................
Second
Applicant
And
THE MINISTER OF
HOME AFFAIRS
...................................
First
Respondent
THE DIRECTOR
GENERAL OF THE
...............................
Second
Respondent
DEPARTMENT OF
HOME AFFAIRS
THE MINISTER OF
SOCIAL DEVELOPMENT
..................
Third
Respondent
THE CHIEF
IMMIGRATION OFFICER, O.R. TAMBO
....
Fourth
Respondent
INTERNATIONAL
AIRPORT
And
Case no:
11148/2014
In the matter
between:
SM
..............................................................................................
First
Applicant
HM
.........................................................................................
Second
Applicant
And
THE MINISTER OF
HOME AFFAIRS
....................................
First
Respondent
THE DIRECTOR
GENERAL OF THE
................................
Second
Respondent
DEPARTMENT OF
HOME AFFAIRS
THE MINISTER OF
SOCIAL DEVELOPMENT
...................
Third
Respondent
THE CHIEF
IMMIGRATION OFFICER, O.R. TAMBO
......
Fourth
Respondent
INTERNATIONAL
AIRPORT
And
Case no:
12008/2014
In the matter
between:
SG
...............................................................................................
First
Applicant
CL
...........................................................................................
Second
Applicant
And
THE MINISTER OF
HOME AFFAIRS
....................................
First
Respondent
THE DIRECTOR
GENERAL OF THE
................................
Second
Respondent
DEPARTMENT OF
HOME AFFAIRS
THE MINISTER OF
SOCIAL DEVELOPMENT
...................
Third
Respondent
THE CHIEF
IMMIGRATION OFFICER, O.R. TAMBO
.....
Fourth
Respondent
INTERNATIONAL
AIRPORT
Date of hearing:
4 September 2014
Date of judgment:
14 November 2014
JUDGEMENT
SAVAGE AJ:
Introduction
[1]
Four
applications are currently before this Court for determination in
which the applicants, all foreign adoptive parents of children
born
in South Africa with special needs, initially sought
inter
alia
the review of the failure by the second respondent, the
Director-General of Home Affairs, within a reasonable time to record
name
changes and issue unabridged birth certificates for their
respective adoptive children. All four
applications
were
launched on an urgent basis and by agreement postponed for hearing to
the same date.
[1]
[2]
By the date of hearing of the applications,
urgency was no longer in issue between the parties. Unabridged birth
certificates had
been issued in respect of all six children who are
the subject of the applications, although three certificates
contained certain
erroneous personal details of the relevant adoptive
parents; and the applicants and their adoptive children had departed
from South
Africa for their new countries of residence.
[3]
The brief background to each application is
as follows. The first applicant, VR, was granted an adoption order on
2 April 2014 in
respect of MR and LR both born in South Africa, LR of
a foreign mother. The adoptions were registered on 7 April 2014 by
the adoption
registrar and on 11 April 2014 VR applied to
record
both the adoptions and the change of name and surname of his adoptive
children in the births register
at
the Department of Home Affairs (‘the Department’) at
Wynberg. Following the launch of his urgent application on
10 June
2014 in this Court, on 12 June 2014 an unabridged birth certificate
was issued in respect of MR who was born of a South
African mother.
The Department opposed VR’s entitlement to an unabridged birth
certificate in respect of LR given that his
mother was
foreign
and disputed that the delay in issuing the
unabridged birth certificate in respect of MR was unreasonable.
However, subsequently
the Department undertook on 11 August 2014 to
issue an unabridged birth certificate by 13 August 2014 in respect of
LR, which certificate
was issued on 18 August 2014 after contempt
proceedings had been launched.
[4]
VR initially sought an order reviewing and
setting aside the second respondent’s failure to record within
a reasonable time
the adoption, and the change of forename and
surname of LR; reviewing the failure to issue an unabridged birth
certificate in respect
of MR and LR and directing the second
respondent to issue and make available an unabridged birth
certificate in respect of both
children; an order that the Registrar
of this Court issue and affix an Apostille to the unabridged birth
certificates; an order
directing that the children are authorised to
leave South Africa with the applicant; and costs. By the date of
hearing of the matter,
revised relief was sought for an order
directing that the time taken by the second respondent to issue an
unabridged birth certificate
for the child concerned was
unreasonable; and for costs on the scale as between attorney and
client, including the wasted costs
of postponements (and preparation
for hearing) and, where applicable, the costs of two counsel.
[5]
The second applicants, CT and LT, were
granted
an
adoption order on 20 May 2014 in respect of twins, ET and CT, born in
South Africa of a South African mother. The
adoptions
were registered by the registrar of adoptions on
23 May 2014 in respect of CT and 30 May 2014 in respect of ET. On 2
June 2014 CT
and LT applied at the Bellville office of the Department
to
record the
adoptions and have the change of name and surname of the children
amended in the births register
.
Their urgent application was launched on 26 June 2014 and on 15 July
2014 CT and LT applied at the Department’s offices
for the
unabridged birth certificates and passports to be issued in respect
of their adopted children. On 15 July 2014 the children’s
identity numbers were made available and on 16 July 2014 their
passports and unabridged birth certificates were issued, but with
the
latter reflecting the incorrect adoptive parents. The rectified
unabridged birth certificates by date of hearing of the application
had not been issued.
[6]
CT and LT initially sought an order
reviewing and setting aside the second respondent’s failure to
record within a reasonable
time the adoption, change of forenames and
surname of the twins, and to advise the applicants thereof; directing
the second respondent
to issue a new identity number, a corresponding
unabridged birth certificate and a temporary passport; directing that
the minor
children are authorised to leave South Africa with the
applicants; and costs. By the date of hearing of the matter, revised
relief
was sought for an order directing the second respondent to
issue unabridged birth certificates for the children reflecting the
applicants as their parents and to do so within five (5) working
days; directing that the time taken by the second respondent to
issue
unabridged birth certificates for the children was unreasonable; and
costs on the scale as between attorney and client, including
the
wasted costs of postponements (and preparation for hearing) and,
where applicable, the costs of two counsel.
[7]
The third application was brought by SM and
HM who were granted an adoption order on 28 May 2014 in respect of
BM, born in South
Africa of a South African mother. The adoption
registrar registered the adoption on 30 May 2014 and on 4 June 2014,
the adoptive
parents applied at the Department of Home Affairs in
Bellville to
record
the adoption and the change of name and surname in the births
register
. An urgent application was
launched on 26 June 2014. On 15 July 2014 the adoptive parents
applied for the issue of an unabridged
birth certificate and passport
in respect of BM. On 15 July 2014 the identity number was made
available, with the temporary passport
issued on 16 July 2014 and the
permanent passport issued on 21 July 2014. On 17 July 2014 the
unabridged birth certificate was
issued which recorded the incorrect
date of birth in respect of the adoptive parents. The corrected
unabridged birth certificate
had by date of hearing of the
application not been issued.
[8]
The relief initially sought by SM and HM
was for an order reviewing and setting aside the second respondent’s
failure to record
within a reasonable time the adoption, change of
forenames and surname of BM and to advise the applicants thereof;
directing the
second respondent to issue a new identity number
together with a corresponding unabridged birth certificate and a
temporary passport;
directing that BM is authorised to leave South
Africa with the applicants; and costs. By the date of hearing of the
matter, a revised
order was sought directing second respondent to
issue an unabridged birth certificate in respect of BM, which
reflects the applicants’
correct dates of birth within five (5)
days; directing that the time taken by the second respondent to issue
an unabridged birth
certificate for the child concerned was
unreasonable; and costs on the scale as between attorney and client,
including the wasted
costs of postponements (and preparation for
hearing) and, where applicable, the costs of two counsel.
[9]
The fourth application was brought by SG
and CL who on 6 December 2013, while permanently resident in South
Africa, adopted S, a
child born in South Africa of a foreign mother.
The adoption was treated as a local adoption and was registered by
the registrar
of adoptions on 25 April 2014. On 12 May 2014
application was made to the Paarl office of the Department to record
the adoption
and change the names of the child in the birth register.
An urgent application was launched on 9 July 2014. The stance taken
by
the second respondent was that the Department was precluded from
issuing an unabridged birth certificate to a child born of a foreign
mother, although no opposing papers were filed by the first and
second respondents. On 30 June 2014 SG’s contract of employment
terminated in South Africa and CL obtained employment in Germany from
1 August 2014 causing the couple to return to Germany. An
order was
granted by agreement on 11 August 2014 that S’s unabridged
birth certificate would be issued by 13 August 2014.
When the
unabridged birth certificate was not issued, on 18 August 2014 a
contempt application was launched after which the unabridged
birth
certificate issued on the same date.
[10]
An order was initially sought reviewing and
setting aside the second respondent’s failure to record the
adoption and S’s
change in forenames and surname in the birth
register within a reasonable time; directing second respondent to
make available an
unabridged birth certificate in respect and declare
S to be a South African citizen by birth in terms of section 2(2) of
the Citizenship
Act 88 of 1995 and register her as a South African
citizen, alternatively to issue an unabridged birth certificate
pending the
issue of an identity number; directing the Registrar of
this Court to issue and affix an Apostille to the unabridged birth
certificate;
confirming that S is authorised to leave South Africa
with one or both applicants; and costs. By the date of hearing of the
matter,
a revised order was sought directing that the time taken by
the second respondent to issue an unabridged birth certificate for
the child was unreasonable; and for costs on the scale as between
attorney and client, including the wasted costs of postponements
(and
preparation for hearing) and, where applicable, the costs of two
counsel.
Review under PAJA
[11]
Under
rule 6(1) an application must be brought on notice of motion
supported by an affidavit as to the facts upon which the applicant
relies for relief, disclosing the cause of action upon which the
applicant relies.
[2]
The cause
of action initially pleaded in this matter was a review under s
6(2)(g) of the Promotion of Administrative Justice Act
(PAJA) 3 of
2000 with consequential relief sought. PAJA is the statutory
embodiment of the constitutional right to just administrative
action,
that is, administrative action that is lawful, reasonable and
procedurally fair.
[3]
S 6(2)(g)
provides that ‘(a)
court
or tribunal has the power to judicially review an administrative
action if - …the action concerned consists of a failure
to
take a decision
’
.
S 6(3) provides that where there is a duty to take a decision but
there has been a failure to take the decision in the context
of no
law prescribing the period within which to do so, an applicant may
‘
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision on the ground that there has
been unreasonable
delay in taking the decision
’.
[12]
In
a review application brought under s 6(2)(g) an applicant is obliged
to establish that the position when launching the review
was that the
requisite administrative application had been made and that there had
been an unreasonable delay in taking the decision.
If the applicant
fails to do so, the review will have commenced prematurely, without
establishing any ground for review and it
will follow that the review
application must be dismissed.
[4]
Where a decision is made by the administrator after an application
under s 6(3) for review has been launched, once it is apparent
on the
papers that the decision has been made, there is no longer a failure
to take a decision within the meaning of s 6(2)(g)
which is capable
of review. It is therefore no longer open to the Court to review and
declare unlawful the failure to make such
decision.
[5]
[13]
S
8(1)(d) permits a court in proceedings for judicial review in terms
of section 6(1) to ‘
grant
any order that is just and equitable, including orders…
declaring the rights of the parties in respect of any matter
to which
the administrative action relates.
’
The applicants did not in their notices of motion seek declaratory
relief in the event of the administrative decision having
been taken
by the hearing of the applications (as was the approach adopted in
matters such as
Mahambehlala
v MEC of Welfare, Eastern Cape).
[6]
At the hearing of the matter, with the administrative decisions in
question having been taken by the second respondent, the applicants
sought revised relief in the form of a declaratory that the delay in
determining the respective applications had been unreasonable,
an
order that certain erroneous details recorded on the unabridged birth
certificates of three of the minor children be corrected
and costs.
[14]
The
respondents took issue with the fact that with the administrative
decisions taken, the applicants did not amend their notice
of motion
to seek relief that was purely declaratory in nature.
[7]
I am not persuaded that it was necessary for the applicants to do so
given that the proceedings before this Court remain judicial
review
proceedings within the meaning of s 8(1)(d), even if the underlying
review ground had resolved. In principle it seems to
me that the
grant of declaratory relief remains permissible under s 8(1)(d) where
the Court concludes that it is just and equitable
on the facts to
grant such relief.
[15]
The
Court holds a discretion as to whether to grant declaratory relief or
not and may do so where such relief is considered to be
appropriate
in order to clarify legal and constitutional obligations on
consideration of the relevant circumstances.
[8]
A declaratory order will generally not be granted where the issue has
been decided by a court, where the legal position is clearly
defined
by statute,
[9]
or where the
question raised is academic, abstract or hypothetical.
Declaratory
relief is by its nature essentially remedial and corrective and
creates
no
direct legal consequences.
[10]
I
t
is not there for the asking and there must be good and proper reason
to grant such relief where it can have no practical purpose.
[11]
It
is for this reason that courts are often cautious to grant such
relief, as was the case in
MEC
for the Department of Welfare v Kate,
[12]
where
there has been a
continued departmental failure to comply with court orders.
[16]
In
Thusi
v Minister of Home Affairs and another,
[13]
Wallis J stated that -
‘
It
seems to me that declaratory relief should only be granted in those
cases where it is possible for the court to grant an order
along the
lines of a structured interdict
[14]
that
addresses the applicant’s problem specifically and is aimed at
procuring registration of their birth and ultimately the
issue of an
identity document. It is unfortunate that the court is limited in
this regard but it is a consequence of the constraints
under which
courts operate and the need to recognise the separation of powers
between courts, the executive and the legislature
that is fundamental
to our Constitution’.
[15]
Expedition
and adoption
[17]
The
1993 Hague Convention on Protection of Children and Co-operation in
respect of Inter-country Adoption South Africa establishes
safeguards
to protect the fundamental rights and best interests of the child in
inter-country adoption.
[16]
Under the provisions of s 256(1) of the Children’s Act
38 of 2005 the Convention has the force of law in South Africa, with
it provided in s 256(2) that where there is a conflict between
South
African law and the Convention, the Convention prevails
.
[18]
Article 35 of the Convention provides that
‘(t)
he competent authorities of
the Contracting States shall act expeditiously in the process of
adoption’
. Article 18 requires
that ‘(t)
he Central Authorities of
both States shall take all necessary steps to obtain permission for
the child to leave the State of origin
and to enter and reside
permanently in the receiving State
’.
In the transfer of the child to the receiving state under Article
19(2) –
‘
The
Central Authorities of both States shall ensure that this transfer
takes place in secure and appropriate circumstances and,
if possible
in the company of the adoptive or prospective adoptive parents’
.
[19]
The
Guide to Good Practice on the Implementation and Operation of the
Convention
[17]
records that
expeditious action is essential at all stages of the adoption
process, while noting that the Convention does not set
any specific
time limits for particular actions:
‘…
The
phrase “act expeditiously” in Article 35 is understood to
mean ‘to act as quickly as proper consideration
of the issues
will allow”.
[18]
It is important to distinguish between any necessary delay, such as
the time taken to find the best family for a particular child,
and an
unnecessary delay, such as that created by cumbersome procedures or
inadequate resources. A necessary delay may also include
diligence in
the adoption preparations, for both the child and the prospective
adoptive parents. The appropriate speed and expedition
will vary from
case to case
…’
[19]
[20]
The
Children’s Act 38 of 2005 regulates both the adoption of
children in South Africa as well as inter-country adoptions.
[20]
S 261(5) requires that the central authority in both the receiving
country and the country of origin must agree on the inter-country
adoption before an adoption may be referred to the children’s
court for consideration
[21]
and an adoption order granted. In the case of a country that is not a
signatory to the convention, the competent authority of that
country
and the South African central authority must both agree to the
adoption.
[22]
[21]
The
central authority may, under the provisions of s 261(6)(a) withdraw
its consent to the adoption of the child within a period
of 140 days
from the date on which it consented to the adoption, if it is in the
best interests of the child to do so and where
it does so ‘
the
child must be returned to the Republic forthwith in the prescribed
manner
’.
[23]
S 261(7) provides that an
inter-country adoption order takes effect only after the period of
140 days has lapsed and the central
authority has not withdrawn its
consent.
[24]
[22]
Where
the children’s court approves an adoption and an adoption order
is granted in terms of s 261(5) or s 262(5), the central
authority
‘
may
issue an adoption compliance certificate
’.
[25]
Following an order of adoption, the adopted child is regarded as the
child of the adoptive parent(s), who are the parent(s) of
the child,
and in terms of s 242(2)(b) an adoption order
inter
alia ‘…confers the surname of the adoptive parent of the
adoptive child…’
.
[26]
S 245 provides that:
[27]
(1)
After
an adoption order has been made by a children's court in respect of a
child whose birth has been registered in the Republic,
the adoptive
parent of the child must apply in terms of the applicable law to the
Director-General: Home Affairs to record the
adoption and any change
of surname of the child in the births register.
(2)
An
application in terms of subsection (1) must be accompanied by –
(a)
the relevant adoption order as registered by the adoption registrar;
(b)
the birth certificate of the child;
(c)
the prescribed birth registration form; and
(d)
a fee prescribed in terms of any applicable law, if any.
[23]
In
terms of
ss 24
and
25
(2) of the
Births and Deaths Registration Act 51
of 1992
adoptive parents may also apply to the Director-General to
alter the forename under which a child’s birth was
registered.
[28]
[24]
Where
a child is born of parents who are non-South African citizens and who
are not permanent residents or refugees, notice of birth
must be
given under
regulation 8(1)
of the Regulations on the Registration of
Births and Deaths, 2014.
[29]
The Director-General must, upon an approval of a notice of birth, in
terms of
regulation 8(5)
issue the parents with a birth certificate
in respect of the child born without an identity number and in terms
of s 5(3) of the
Act the child shall not be entered into the national
population register.
[25]
With
the second respondent obliged to act expeditiously in the processes
relating to inter-country adoption under Article 35 of
the Hague
Convention, it is what constitutes expedition that is in issue
between the parties.
[30]
The reasonableness or unreasonableness of a delay is entirely
dependent on the applicable facts and circumstances.
[31]
Unlike
the consideration of what constitutes an unreasonable delay in the
context of social grants, the parties before this Court
have not
agreed what the period is within which applications should reasonably
be considered.
[32]
[26]
In
Bato
Star
Fishing
(Pty) Ltd v Minister of Environmental Affairs
[33]
it
was stated that -
‘…
In
treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the proper role of the
Executive within the Constitution. In doing so a Court should be
careful not to attribute to itself superior wisdom in relation
to matters entrusted to other branches of government. A Court
should thus give due weight to findings of fact and policy decisions
made by those with special expertise and experience in the field. The
extent to which a Court should give weight to these considerations
will depend upon the character of the decision itself, as well as on
the identity of the decision-maker. A decision that requires
an
equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution
with specific expertise in that area must be shown respect by the
Courts. Often a power will identify a goal to be achieved,
but
will not dictate which route should be followed to achieve that goal.
In such circumstances a Court should pay due respect
to the route
selected by the decision-maker
.’
[27]
Ngcobo
J in
Doctors
for Life International v Speaker of the National Assembly
[34]
stated that the principle of separation of powers –
‘…
has
important consequences for the way in which and the institutions by
which power can be exercised. Courts must be conscious of
the vital
limits on judicial authority and the Constitution’s design to
leave certain matters to other branches of government.
They must
observe the constitutional limits of their authority. This means that
the judiciary should not interfere in the processes
of other branches
of government unless to do so is mandated by the Constitution
’.
[28]
In the respondent’s answering
affidavit deposed to by its Director of Births, Deaths and Marriages,
Mr Aaron Ramudumo, it
was stated that an unabridged birth certificate
ordinarily takes between 6 to 8 weeks to issue. The various steps
involved were
detailed, including verifying the information,
recording the birth in the birth register, and sending the
application to the Department’s
head office in Pretoria for
consideration by the personal amendments section where the documents
and information are verified against
the national population
register, recording the adoption and the change of names of the
adopted child registered. A new identity
number is then issued for
the child
whereafter
the
application for an unabridged birth certificate may be made and the
certificate issued after approval by the Department’s
head
office. An unabridged birth certificate for a South African child is
simpler and can be issued within a day or two, whereas
the process is
administratively more complex and is subject to a higher level of
scrutiny if it is an adoption, domestic or inter-country,
to
safeguard and protect children and to combat child trafficking in
line with the Hague Convention.
[29]
The applicants contend that the delay is
unacceptable and overstated given the limited number of foreign
adoptions. By way of example
the applicants’ attorney, Ms
Deborah Wybrow, stated in a supplementary affidavit filed that in the
period July 2013 to March
2014 nine unabridged birth certificates
were issued for children in respect of whom adoption orders had been
granted to foreign
adoptive parents in an average of 13 days rather
than weeks.
Delay
[30]
The
obligation to expedite (or ‘cause to happen sooner or more
quickly’)
[35]
cannot
mean to determine in the normal course and I am satisfied must
require action as quickly as a proper consideration of the
issues
will allow. Faced with a dispute between the parties as to what
constitutes a reasonable or unreasonable delay in taking
the relevant
administrative decisions, this Court must, as was cautioned in
Bato
Star,
be
careful not to attribute to itself superior wisdom. Due weight must
be given to the facts placed and policy decisions of those
with
special expertise and experience in the field in order for an
equilibrium to be struck between an expedited process and competing
considerations and interests such as to ensure adherence to the
appropriate
safeguards against child trafficking through the appropriate careful
administrative scrutiny.
[31]
This Court has
appreciation
for the fact that the adopted children in the
current applications are classified as having special needs and are
therefore vulnerable.
It is in their best interests on adoption to be
placed with their respective new adoptive family without delay in
order for the
appropriate bonds to form and unnecessary
administrative delays should not be condoned given the statutory
obligation upon the
respondents to ensure administrative expedition
under the Convention.
[32]
However, it has not been shown on the facts
before this Court that the Department’s administrative
procedures are cumbersome
or inadequate. I accept that prior to the
issue of an unabridged birth certificate, name changes are required
and, in the case
of children born of South African parents,
amendments to the national population register effected with identity
numbers issued
following adoption. Given the sensitive nature of
these
administrative
processes
and the clear need to safeguard against child trafficking and other
such gross violations of children’s rights,
quite clearly the
appropriate checks and balances must be in place to prevent
wrongdoing as well as the integrity of the Department’s
internal system. It stands to be noted that it is precisely the
errors which arose in the CT and LT, as well as in the SM and HM
unabridged birth certificates, issued in the course of these
proceedings and under pressure by the Department, which the
appropriate
checks and balances must safeguard against. Without the
necessary factual basis provided to show that the Department’s
current
administrative processes are inappropriate or inadequate,
there is insufficient factual support for a conclusion that its delay
in issuing the birth certificates in respect of those adoptive
children who are the subject of the current applications was
unreasonable.
[33]
It was submitted for the applicants that
the pre-adoption inter-country adoption processes are subject to high
levels of scrutiny
over an extended period of time, often in excess
of a year, and that the Department therefore is not required to
review the adoption
order, or its registration, in light of such
processes having been complied with. As a result, it was suggested
that the administrative
processes after the grant of the adoption
order can be fast-tracked by the Department and that a delay in doing
so is unreasonable
given that the adoptive parents remain in South
Africa on a limited period tourist visa with various obligations to
return to in
their country of origin. Furthermore, given the clear
preference that newly adopted children leave South Africa with their
adoptive
families, such fast-tracking is both appropriate and
necessary.
[34]
Whilst the difficulties faced by adoptive
parents in remaining in the country, or having to return given their
obligations in their
country of origin, should not be underestimated,
determining whether a delay is unreasonable requires the competing
interests and
obligations of the parties to be carefully balanced,
conscious of the fact that it is not for the Court to interfere in
the processes
of other branches of government unless to do so is
mandated by the Constitution. If the facts before the Court do not
clearly make
out a case for the relief sought, such relief cannot be
granted.
[35]
With due regard to the material placed
before this Court, I am not satisfied that there is sufficient
factual support before this
Court to justify a conclusion on the
facts that the Department’s delay in determining the
applications and issuing the unabridged
birth certificates was
unreasonable. This should not however be interpreted to mean that the
Department should not take active
steps to ensure adherence to its
obligation to expedite administrative process in the context of
inter-country adoptions, and to
do so with due regard to the best
interest of the children concerned. This requires a continued
commitment to streamline and improve
administrative procedures,
whilst
retaining
in
place the necessary checks and balances to prevent both unwarranted
delay, wrongdoing and protect the integrity of the Department’s
internal system.
[36]
It follows that with no unreasonable delay
found to exist there can be no declaratory relief under s 8(1)(d)
granted.
Rectification of
three certificates
[37]
The second respondent took issue with the
relief sought in the draft order for rectification of the unabridged
birth certificates
issued in respect of three of the minor children
who are the subject of the current applications, twins ET and CLT, as
well as
BM, on the grounds that no application had been made to the
Department’s offices for the rectification of such
certificates,
nor was this relief sought in the notice of motion.
[38]
Although the notice of motion was not
amended to seek the relief sought in this regard, and as a general
principle the requisite
application is required to be made at the
Department of Home Affairs to rectify an unabridged birth certificate
issued where it
contains erroneous details, given that the second
respondent agreed within the context of the current litigation to
issue such
certificates, it can reasonably be assumed that it
undertook to do so in a manner which recorded the correct personal
details of
the parents of the adopted children. Little purpose would
be served in the context of this litigation to require the applicants
to apply at the Department for the rectification of the birth
certificates given that the issue of such certificates had been
agreed. In such circumstances, I can find no reason as to why this
Court should not grant the orders sought to rectify such certificates
with (10) days, as opposed to the five (5) days sought by the
applicants in the draft orders prepared, which constitutes a
reasonable
period for the respondents to do so given the facts of
this matter.
Costs
[39]
As
already stated, it is a question of fact whether the department has
delayed unreasonably in attending to the applications in
question and
what constitutes a reasonable period will depend on the circumstances
of the matter.
[36]
Where there
has been an absence of an explanation for the delay, or no basis for
the refusal to grant the
relevant
unabridged
birth certificates, the
commencement
of proceedings was legitimate and there is a
prima
facie
entitlement on the part of the applicant to a favourable order for
costs’.
[37]
[40]
I am not however
persuaded that the commencement of proceedings in the CT and LT, as
well as in the SM and HM applications was appropriate
given that less
than a month had elapsed since the date of application on 2 June 2014
and 4 June 2014. Similarly, the two months
between the 11 April 2014
application made on behalf of MR and 10 June 2014 respectively was
within the 8 week period specified
by the respondents as the period
reasonably required to issue the certificates. For the reasons stated
above, the delay in issuing
the unabridged birth certificates in
respect of these applications has not been found to have been
unreasonable.
[41]
In
Motsepe
v Commissioner for Inland Revenue
[38]
it was emphasised that a cautious approach should be adopted to
awarding costs against litigants who seek to enforce their
constitutional
right against the state. This was endorsed in
Biowatch
Trust v Registrar, Genetic Resources
[39]
in which the p
rinciple
was established that ordinarily, if the government wins, each party
should bear its own costs as this ‘
diminishes
the chilling effect that adverse costs orders would have on parties
seeking to assert constitutional rights and thereby
building the
jurisprudence and ensure law and conduct of the state are compatible
with the Constitution’.
If
there is a genuine, non-frivolous challenge to the constitutionality
of a law or of state conduct, then the losing non-state
litigant
should be shielded from the costs consequences of failure.
[42]
The
applicants in the CT and LT, SM and HM applications and that of VR
acting in the best interests of their newly adopted minor
children,
approached Court to secure the administrative decisions they sought
and were entitled to. Although the view this Court
takes of the
matter was that they were unduly hasty in doing so, I can find no
reason as to why they should be ordered to pay the
respondents’
costs. This is so despite the fact that I am not persuaded that the
applicants have shown that the time taken
by the second respondent
within the context of the current matters to issue the certificates
was unreasonable and in spite of the
obligation to expedite such
applications. I accept that the current litigation serves some
purpose in emphasising that administrative
applications made in the
context of inter-country adoptions must be expedited and ventilates
this important issue
.
[40]
It would be inappropriate to saddle the applicants with costs in
circumstances. As a result
the
view I take of the matters is that each party should bear its own
costs, save for the applications of the two children discussed
below.
[43]
The applications made in respect of LR and
S differ insofar as the second respondent took the position that it
was not under a legal
duty to issue unabridged birth certificates to
both minor children in that both had been born in South Africa
of
non-South African parents. In due course however
it was conceded by the respondents that there existed an obligation
in terms of
regulation 8(5), upon approval of a notice of birth, to
issue non-South African parents, who are neither permanent residents
nor
refugees, with a birth certificate but without an identity
number. As a consequence, the second respondent’s concession
that
the Department is obliged to issue the birth certificates in
accordance with the provisions of the regulation justifies the
imposition
of a costs order favourable to the applicants in these
matters, including the costs in respect of the applications for
contempt.
This should include the costs of two
counsel
.
Order
[44]
In the result an order is made in the
following terms:
[1]
In case number 11149/2014: the second
respondent, the Director-General of the Department of Home Affairs,
is directed to issue unabridged
birth certificates in respect of ET
and CLT which reflect the applicants, CT and LT, as their parents
within ten (10) days of this
Order.
[2]
In case number 11148/2014: the second
respondent, the Director-General of the Department of Home Affairs,
is directed to issue an
unabridged birth certificate in respect of BM
which reflects the correct dates of birth of her parents, being the
applicants, SM
and HM, within ten (10) days of this Order.
[3]
In case number 10171/2014: the first and
second respondents are to pay the applicant’s costs insofar as
they relate to that
part of the application which concerns the minor
child LR and are to include costs in respect of the contempt
application. Such
costs are to be paid on the scale as between party
and party and are to include the costs of two
counsel
.
[4]
In case number 12008/2014: the first and
second respondents are to pay the applicants’ costs, inclusive
of costs in respect
of the contempt application, on the scale as
between party and party, including the costs of two counsel.
[5]
In case number 11149/2014 and case number
11148/2014: Each party is to bear its own costs.
[6]
In case number 10171/2014: each party is to
bear its own costs in respect of that part of the application which
concerns the minor
child MR.
KM
SAVAGE
Acting
Judge of the High Court
Appearances
:
Applicants:
J L McCurdie SC and V L A de la Hunt
Instructed
by Wybrow & Oliver (in first three applications) and Fairbridges
(in fourth application)
First
and Second Respondents: W Mokhari SC and T J Golden
Instructed
by the State Attorney
[1]
The third respondent, the Minister of Social Development, gave
notice to abide the applications.
[2]
Mauerberger
v Mauerberger
1948 (3) SA 731
(C );
Bowman
NO v De Souza Roldao
1988 (4) SA 326
(T) at 327D-328A
[3]
Section 33 of the Constitution;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 22.
[4]
Thusi
v Minister of Home Affairs and another
2011 (2) SA 561
(KZN) at 579C-D
[5]
At 579E-H
[6]
2002 (1) SA 342
(SE)
[7]
See in this regard
Shepherd
v Mitchell Cotts Seafreight (SA) (Pty) Ltd
1984
(3) SA 202
(T) at 205E-H;
Nedbank
Ltd v Hoare
1988 (4) SA 541
(EC) 543H;
Berg
v Gossyn (1)
1965 (3) SA 702
(O)
[8]
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005
(2) SA 359
(CC) at para 107;
JT
Publishing
(
Pty
)
Ltd
v Minister of Safety & Security
supra;
North
Central Local Council & South Central Local Council v Roundabout
Outdoor
(
Pty
)
Ltd
2002 (2) SA 625
(D)
[9]
Sex
Worker Education and Advocacy Task Force v Minister for Safety and
Security
2009 (6) SA 513
(WCC) at paras 43-5
[10]
Bishop Remedies Constitutional Law of South Africa (2
nd
ed) at 9-176; Hoexter Administrative Law in South Africa, 2013 (2
nd
edition) at 588
[11]
Van
der Merwe v National Director of Public Prosecutions and others
2011
(1) SACR 94
(SCA) paras 27-34 12
MEC
for the Department of Welfare v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA) at 28-29
132011 (2) SA
561 (KZN) at 577D-G
14Minister of
Health and others v Treatment Action Campaign and others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) at para 129
15At 585B-D
[16]
The Convention was ratified by South Africa on 21 August 2003,
effective from 1 December 2003
[17]
Guide No. 1, 2008
[18]
With reference to Art. 12(6) of the 2007 Convention on the
International Recovery of Child Support and Other Forms of Family
Maintenance
[19]
Paragraph 133
[20]
Chapters 15 and 16
[21]
Section 261(4)
[22]
Section 262
[23]
In terms of s 261(6)(b). A similar provision exists in s 262(6)(a)
and (b) in respect of a non-convention country adoption.
[24]
A similar provision exists in s 262(7) in respect of a
non-convention country adoption.
[25]
Section 263
[26]
Section 245
[27]
Section 27B
of the
Births and Deaths Registration Act echoes
the
provisions of
s 245(1)
and (2).
[28]
Sections 16
and
17
of the Regulations echo such provisions.
[29]
Government Gazette No. 37373, 26 February 2014
[30]
See
Sibiya
v Director-General: Home Affairs
2009 (5) SA 145
(KZN) at para 19
[31]
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en 'n
Ander
1986
(2) SA 57
(A) at 86G
[32]
See
Mahambehlala
v MEC for Welfare, Eastern Cape
2002 (1) SA 342
(SE) at 348A;
Ngalo
v South African Social Security Agency
(
SASSA
)
2013 2 All SA 347
(ECM) at para 21
[33]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 48
[34]
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 37
[35]
Concise Oxford English dictionary
[36]
Evans
v Smith & Another
2011 (40 SA 742
(WCC) at para 25;
Steyn
N.O. v Ronald Bobroff & Partners
2013 (2) SA 313
(SCA) at para 28
[37]
Thusi
at 587F-H
[38]
1997
6 BCLR 692
(CC
)
at para 30
[39]
2009
10 BCLR 1014
(CC) para 22
[40]
Ex
parte Gauteng Provincial Legislature: In re Dispute Concerning the
Constitutionality of Certain Provisions of the Gauteng School
Education Bill of 1995,
1996
3 SA 165
(CC) para 36