Couple wins legal battle to have rule in Births and Deaths Registration Act declared unconstitutional 

News24 | 16 January 2023

A couple has won a court battle to have a regulation in the Birth and Deaths Registrations Act declared unconstitutional and invalid. 

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• A South African woman and her Bulgarian partner have won an application to have a regulation in the Birth and Deaths Registrations Act declared unconstitutional.

• Judge Mbulelo Jolwana in the Eastern Cape High Court found that it imposed discriminatory conditions for fathers who are unmarried and may be undocumented foreigners.

• The home affairs minister and department were ordered to pay the costs of the application.

A couple has won a court battle to have a regulation in the Birth and Deaths Registrations Act declared unconstitutional and invalid, after their son was not allowed to have his father's name on his birth certificate because his father was in South Africa illegally.

In the Eastern Cape High Court in Gqeberha, Judge Mbulelo Jolwana came to the "ineluctable conclusion" that Regulation 12(2)(c) imposes discriminatory conditions in the recordal of fathers who are unmarried and who may be illegal foreigners in the children's registration of birth.

The parents, Ms U and Mr V, sought legal recourse after their attempt to register Mr V as the baby's father at the Department of Home Affairs.

Officials refused to make the entries in their records and issue an unabridged birth certificate for their infant because Mr V, a Bulgarian national, was in the country on an expired visa and, therefore, illegally.

According to court papers, they are not married but live as husband and wife.

A paternity test was required to prove fatherhood because he was not a South African citizen, and the couple was told that a court order declaring Mr V as the father, in addition to proof of paternity, would be required. 

Section 11 of the Births and Deaths Registration Act 51 of 1992 provides for the amendment of the birth registration details if the father wishes to acknowledge himself as the father of a child born out of wedlock, subject to the submission of a conclusive proof of paternity.

The Minister of Home Affairs and the head of the provincial department's office initially opposed the application, citing that the father was in the country illegally.

During the court proceedings, however, they made an about-turn and conceded to the relief sought without an explanation.

The applicants' legal team, however, persisted with a constitutional challenge, referring to the "considerable distress" the regulation had caused them and "continues to bedevil those children born in similar circumstances".

"The respondents cannot plead ignorance about which regulation or subregulation is applicable and in which circumstances. The regulations are theirs and theirs alone, and the [minister's] predecessor must be presumed to have known what he intended when he issued them and the [minister], likewise, when he enforced them," Jolwana said in his judgement.

The department must be assumed to have consistent rules and policies and deal with people in similar circumstances as the couple, making the inquiry into constitutionality a matter of public importance, he added.

"Besides the issue of the rights of the affected minor children, even the parents of the children, must be attended to both professionally and competently by government officials, and mixed signals are totally unhelpful and utterly confusing. Their own rights to dignity and to an efficient public service are implicated and are not without significance."

The contested Regulation 12(2)(c) reads: "The person who acknowledges that he is the father of the child born out of wedlock must… have his fingerprints verified online against the national population register. Provided that in the event of the father being a non-South African citizen, he must submit a certified copy of his valid passport and visa or permit, permanent resident's, identity document or refugee identity document."

The couple contended that their child was prejudiced and discriminated against irrationally by the regulation because of the circumstances of his birth.

Jolwana agreed.

"There cannot be any cogent justification for such discrimination, and none was advanced. This is hardly surprising. If there was a proper basis for the discrimination on the basis of the illegality of this child's father's presence in this country, it escapes me why the [minister and department] have agreed to the amendment of the child's registration records. 

"After all, the father is still illegally in the country," he said.

"It baffles me how the respondents, especially the minister, can consent to this child's father's details being entered into the birth registration records of this child and still argue that Regulation 12(2)(c) is valid and should remain extant.

"This would have the inevitable consequence of its continued enforcement by hapless officials of the department, a situation of total chaos, confusion and inconsistent application of the regulation. 

"This surely should not be countenanced."

Jolwana found the regulation to indeed be "clearly unconstitutional and irrational".

"On the respondents' submissions, the event of the expiry of a visa must determine if the child who is born should be allowed to have a birth certificate with full details of his or her father. This defies all sense of logic," he said.

"In this case, the father was not able to renew his visa for reasons that obviously had nothing to do with the child. As a result, his continued stay in this country became illegal. 

"None of that has anything to do with the child and his right to have the identity of his father officially recognised, not for the father but most importantly, for the child."

According to Jolwana, the irrationality of the regulation becomes more pronounced if regard is had to the fact that recognising, protecting, respecting and fulfilling the rights of the affected children does not in any way curtail the minister and department's ability to deal with the fact of the illegality of the presence of their fathers in South Africa.

"For instance, the respondents are entitled to deport [Mr V] in the normal course or deal with him in any way they decide within the framework of the law as they should with any other illegal foreigner. 

"Therefore, the entry of his details in the child's birth certificate does not limit any of that. In fact, it only prejudices the child and does so unjustifiably and irrationally, without serving any useful purpose."

The minister and department were ordered to pay the costs of the application.

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