THE High Court has nullified the re-registration of a birth certificate for a child born out of wedlock, ordering the Registrar-General to strike it from the records.
This ruling declared the birth certificate invalid, questioning the legality of attributing paternity to a deceased man decades after his death.
The dispute arose from a contested inheritance involving the late Lazarus Mkudu’s estate.
Teresiah Mkudu, the applicant, sought a declaratory order to invalidate Ruvimbo Manyonda’s birth certificate, issued nearly 20 years after Mkudu’s death.
Teresiah argued that the re-registration of Ruvimbo’s birth violated the Births and Deaths Registration Act [Chapter 5:02], which permits such re-registration only if the child’s parents subsequently marry.
She contended that this condition did not apply, as no marriage had occurred between Ruvimbo’s mother and the late Lazarus Mkudu.
Ruvimbo, the first respondent, opposed the application and asserted the validity of her birth certificate, relying on section 12(2)(c) of the Act. She argued that the law allows the registration of a father’s name if requested jointly by the child’s mother and a near relative of the deceased father.
However, Teresiah countered that this provision applies solely to the initial registration of a birth and cannot be invoked posthumously, where the alleged father did not acknowledge paternity during his lifetime.
Justice Maxwell ruled in favour of Teresiah, finding that the Registrar-General’s Office acted beyond its legal authority.
The court held that the re-registration of Ruvimbo’s birth was invalid and declared the birth certificate null and void.
Justice Maxwell stated, “The third respondent (Registrar-General) purported to do that which the law does not entitle it to do. The re-registration was illegal, and the birth certificate issued in favour of the first respondent is null and void.”
The court emphasised the significant impact of this illegality on Teresiah’s inheritance rights.
“The illegality can result in irreparable harm where the first respondent is attempting to claim benefits from the applicant’s deceased father’s estate on the basis of the illegally procured birth certificate,” noted Justice Maxwell.
The ruling underscored the principles of administrative justice.
Citing section 3(1) of the Administrative Justice Act [Chapter 10:28], the court highlighted the duty of administrative authorities to act lawfully, reasonably and fairly.
Justice Maxwell remarked, “The Constitution guarantees a comprehensive and justiciable right to lawful, efficient, reasonable, proportionate, impartial and fair administrative conduct to prevent abuse of power.”
Delving into section 12 of the Births and Deaths Registration Act, the court clarified that the provision for registering a father’s name applies only to the initial registration of a birth.
Justice Maxwell rejected the Registrar General’s reliance on the concept of “legitimation” to justify re-registration, declaring it foreign to Zimbabwean law.
She stated, “The Registrar has improperly imported the concept of legitimation. Section 12 applies only to initial registration, while re-registration is permissible only under section 19 for recognising children as born in wedlock when their parents subsequently marry.”
The court further examined section 19, which governs the re-registration of births.
Justice Maxwell concluded that this provision is explicitly limited to cases where a child’s status changes from being born out of wedlock to being born in wedlock.
She ruled, “Section 19 does not allow the re-registration of a birth for a child born out of wedlock whose parents never married and whose father is deceased. The law does not permit relatives of a deceased father to posthumously acknowledge paternity or invoke legitimation to re-register a birth.”
Affirming that administrative authorities must operate within the bounds of the law, Justice Maxwell reiterated that the Registrar General’s actions in this case were not only unlawful but also posed a direct threat to the rights of legitimate heirs.
The court’s decision invalidated the contested birth certificate, protecting Teresiah’s legal interests in the estate of Lazarus Mkudu.
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