Couples say constitution is 'archaic and patriarchal'
The wives together with their husbands challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act due to alleged gender discrimination.

Two Free State men will now use their wives' surnames after their spouses successfully challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act which they say is, among other things, archaic and patriarchal.
The wives together with their husbands challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act due to alleged gender discrimination.
The first and second applicants were married in 2021 but were unable to have the husband assume the wife's surname due to department of home affairs restrictions. Their daughter carries a surname they did not intend to be their family name. The third and fourth applicants, Jess Donnelly-Bornman and Andreas Bornman married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their names.
The two couples argued that the act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality. They alleged that this amounted to discrimination based on sex and gender, violating constitutional equality rights.
They  sought to have relevant sections of the act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage. They argued that the current law is archaic, patriarchal, and incompatible with constitutional values of equality regardless of sex, gender, or marital status.
According to judge Joseph Mhlambi, the first couple – who have not been named – discussed the issue of the surnames when they started dating in 2014 and had always intended that the husband would assume the wife's surname should they get married.
That is because it was her biological parents' surname and symbolised her connection to them.
“They passed away when she was four years old. She has no intention of ever changing her surname, and she explained this to the second applicant at an early stage of their relationship, around 2014,” said the judge.
Regarding the second couple, Donnelly-Bornman is an only child who has stated that her maiden surname is important to her.
“Before their marriage, she informed [her husband Bornman] that she preferred to keep her maiden surname and would rather hyphenate [Bornman's] surname with her own. Both did not wish to have different surnames from each other and their children. They preferred to combine their surnames to reflect their familial unit.”
On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse
judge Joseph Mhlambi,
“They were married on April 2 2022 at Knysna. On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse,” Mhlambi said.
The Free State Society of Advocates joined the challenge as amicus curiae (friends of the court) and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.
The court had to determine whether the act and its regulations unfairly discriminated based on gender and violate constitutional equality rights.
Judge Mhlambi said he was satisfied that the two couples had established their entitlement to the relief sought and found that the provisions are inconsistent with the constitution due to gender-based discrimination.
He also declared Section 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) of the related regulations unconstitutional due to gender-based discrimination. The court also ordered the department of home affairs to amend the relevant surnames as requested.
The declaration of invalidity was suspended for 24 months to enable the president and his cabinet, together with parliament to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.

Schreiber said he would reach out to the departments, including the South African Police Service (Saps), for joint operations. 

Leon Schreiber, minister of Home Affairs, during the swearing-in ceremony of the new national executive members at Cape Town International Convention Centre on 3 July, 2024 in Cape Town. Photo by Gallo Images/Brenton Geach

Home Affairs Leon Schreiber says in the coming year, the department will intensify inspections at restaurants, spaza shops, farms and mines by over 50% to take action, including deportations, against people who are illegally employed.

The initiative was started under his predecessor, Aaron Motsoaledi, who earlier this year called for harsher sanctions against business owners who knowingly employ undocumented foreigners.

Motsoaledi was speaking at a stakeholder engagement and service delivery monitoring session in Gqeberha in February.

“Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this act shall be guilty of an offence and liable, upon conviction, to a fine or imprisonment not exceeding one year. Additionally, a second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine,” said Motsoaledi.

“A third subsequent conviction of such an offence shall result in imprisonment not exceeding five years without the option of a fine.”

At the time, Motsoaledi also confirmed that the Department of Co-operative Governance and Traditional Affairs (Cogta) and the Department of Small Business Development were collaborating to tighten laws to prevent undocumented foreigners from operating businesses in the country.

During the department’s budget speech on Monday, Schreiber said he would reach out to the departments for joint operations. 

Home Affairs on immigration

Schreiber further said the department was working on the provision of smart ID cards to naturalised citizens.

He said 280 cards have been issued and another 697 were in progress.

“Once the system has been adjusted to verify compliant applications, all naturalized citizens will be able to visit any Home Affairs office equipped with live-capture facilities to apply for their smart ID cards,” he said. 

Schreiber also announced that Home Affairs would urgently reactivate the Immigration Advisory Board. It will provide him with “evidence-based advice” on tackling matters, such as the process of consultation on the future of the Zimbabwean Exemption Permit (ZEP).

Last month, the Constitutional Court (ConCourt) ruled that Motsoaledi unlawfully terminated the ZEPs.

The court found that Motsoaledi had failed to consult with ZEP holders.

BMA deportations

Also last month, the Border Management Authority (BMA) deployed an additional 400 junior border guards, after an eight-month training programme. 

The majority of the guards are deployed at Beitbridge to Zimbabwe, Lebombo and Kosi Bay to Mozambique and Maseru and Ficksburg to Lesotho.

Their tasks include addressing the scourge of illegal entry, the smuggling of illicit cigarettes, stolen high-value vehicles and stock theft. 

To date, the BMA’s guards have intercepted and deported over 296,000 individuals who had attempted to enter the country illegally.

Over 303 vehicles were intercepted when criminals attempted to illegally take them out of South Africa.

“South Africa needs to do much more to combat illegal immigration. We must do so both because it is central to our national security. But also out of our commitment to economic growth,” said Schreiber. 

“The reality is that no one will want to visit or invest if we allow our country to lose control over its borders and internal security. This problem needs to be tackled in a sustained, integrated and collaborative way,” he said.

The Citizen – 23 September 2024

The move aims to safeguard visa applicants from being unfairly declared undesirable.

The extensions will help address a backlog of applications. 

One of the first acts of new Home Affairs Minister Leon Schreiber has been to give visa applicants a reprieve.

Schreiber extended the temporary concession for foreigners awaiting the outcome of their visa, waiver and appeal applications.

Home Affairs claims the move is aimed at addressing a backlog of applications and not prejudicing the applicants due to the expected delays.

Protection for lawful contributors to SA

Home Affairs considers itself a vital economic enabler, and the move may set the tone for the new administration.

“[This decision] signals the minister’s commitment to improving the visa system to make South Africa a more attractive destination for international investment, tourism and job creation. [It] serves as a signal of intent to reinvigorate the Department of Home Affairs,” stated the department on 4 July.

“In order to build confidence in this new approach, Schreiber further commits to avoid a repeat of the current situation that has seen the previous concession expire prior to the extension being announced,” the department added.

New expiry date 31 December 2024

The new concession will only apply to foreigners who have been legally allowed entry into the country.

Applicants who have submitted their applications via VFS Global and who can show a verified receipt from the VFS Global tracking system will also be accommodated.

Visa holders awaiting a decision on their waiver applications have been given an extention until 31 December 2024. These visa holders will be allowed to travel unreistricted up to, and including, the expiry date.

Long-term visa holders, such as business, study, relative’s and work visas will have their permits extended until 31 December.

Extensions for negative outcomes

Applicants appealing a negative decisions on any of the above visas will also have their paperwork extended until the end of the year.

These applicants must produce a copy of the rejection letter and receipt of the appeal application to leave or re-enter South Africa.

However, short term visa holders (90 days or less) must arrange to leave South Africa within 90 calendar days of their visas expiration or risk being declared undesirable.

A man found guilty of dealing in dagga has had his conviction and sentence set aside because the magistrate in his trial relied on a law which was deemed unconstitutional almost 30 years ago.

“It is inconceivable that 29 years after this section [of the Drugs and Drug Trafficking Act] was declared unconstitutional, it would still find application in a South African court,” Acting Deputy Judge President of Mpumalanga Takalani Ratshibvumo said in a recent ruling.

He ordered that the judgment be brought to the attention of the Chief Magistrate “to help identify areas in need of training and refresher courses”.

He also ordered court managers in the district to find out why it had taken four months to respond to queries from the review court and to report back to the high court.

Celucolo Michael Mkhonza was convicted by the unnamed acting magistrate in the Mayflower Magistrates’ Court of dealing in drugs in May 2023. He was sentenced to three years’ imprisonment, wholly suspended, and a fine of R5,000, alternatively 24 months in jail.

In September 2023, the matter came before the high court in an automatic review. Queries were sent to the trial magistrate who only responded to them in February 2024.

Judge Ratshibvumo said that from the record of the proceedings it was clear Mkhonza had pleaded guilty to being in possession of 3.26kg of dagga.

Mkhonza had denied that he was “dealing”, saying that someone had given it to him to take to another person.

The magistrate, in handing down judgment, commented that although Mkhonza had “not directly admitted that he was dealing in drugs”, the presumption in the Act was “very clear that the weight of dagga that he was carrying is presumed that he was dealing in drugs”.

The magistrate had been asked to explain how he had come to this conclusion.

In his explanation, he said he had only now realised that that section of the Act, which deemed that a person in possession of drugs over a certain amount was guilty of dealing, had been declared unconstitutional.

Judge Ratshibvumo said almost three decades ago the Constitutional Court, in 1995, had ruled that section unconstitutional and of “no force and effect” because it imposed a “reverse onus of proof” on accused people caught with drugs, contrary to their fair trial rights.

The judge said it was only right that Mkhonza’s conviction and sentence be set aside.

“This may, however, be too little comfort for the accused who may have suffered substantial injustice at this stage,” he said, noting that while Mkhonza had been given a wholly suspended sentence, it was not known if he had paid the additional fine, or had begun serving the 24-month sentence attached to that.

Regarding the excessive delay in the provision of reasons by the magistrate, Judge Ratshibvumo said the magistrate had indicated that he had only received the record from the review court four months after it had been dispatched from the high court.

This delay was unjustified and inexcusable.

“With the advent of technology, requesting and advancing reasons from the trial court should be possible within 24 or 48 hours by means of email communication. Presenting a case for review after the accused has served the sentence defeats the whole purpose of review.

“It is the duty of all officers involved within the Department of Justice and Constitutional Development and the Office of the Chief Justice to give effect to the legislative provision and the court directors meant to protect an accused’s rights.”

He directed that court managers must compile reports within 30 days identifying the source of delay and indicating steps taken to avoid similar delays in future.

Mbekezeli Benjamin of Judges Matter said it was troubling that the magistrate had not known the law.

“It is a basic step in the legal research process to check if the law relied upon is still good law. It is notable that once the concerns were raised with the magistrate, he conceded his error and asked the review judge to correct it. We support Judge Ratshibvumo’s order that the Chief Magistrate identify areas where refresher training might be needed,” he said.

The short answer
No, they may not refuse to register a child’s birth. Here's why.
The whole question
I have a 3-month-old child with a foreign national woman whose visa expired more than 12 months ago. Our child was born in South Africa but is not registered because the Department of Home Affairs refused to do so based on the mother's expired visa. Is a valid visa a determining factor for registering a child?
The long answer
Thank you for your email asking if your child’s mother’s expired visa is grounds for DHA to refuse to register your child.
No, DHA may not refuse to register a child’s birth on the grounds of the legal status of its parents.
In August 2018, the High Court in Grahamstown found that the Births and Deaths Registration Act did not stipulate which parent had the duty to register the birth. The court found that requiring an immigrant parent to produce a valid visa or permit for the registration of the birth of a child, did prevent a father from registering the birth of his child, and this was not what the law intended.
The court found that the father had the right to register his child’s birth, when the mother of the child was either absent, or whose visa had expired, making her an illegal immigrant. The Act also did not prevent an unmarried father from registering his child’s birth.
As the DHA is notoriously slow in acknowledging or implementing court decisions, you could consult the following organisations for assistance