28 August 2018
The Eastern Cape High Court in Grahamstown recently gave a decision in Naki v Director General Home Affairs that ensures the births of all children born in South Africa can be registered, regardless of the legal status of their parents.
Menzile Lawrence Naki, a South African, married Dimitrila Marie Ndovya while he was posted in the Democratic Republic of Congo (DRC) as a peacekeeper. They were married in the DRC according to his wife’s traditions and customs. The marriage was never registered and no marriage certificate was issued, since in the DRC customary marriages are not registered. As such the marriage is not recognised in terms of South African law.
The couple had two children in DRC. At the end of his tour, Naki returned to South Africa and his wife followed him a short while later on a three month visitor’s visa.
When Ndovya’s visa expired she was heavily pregnant and she was unable to travel back to the DRC. She was also not able to apply for a new visa.
She subsequently gave birth in Grahamstown. The couple then applied to have the birth of their daughter registered but the application was refused on numerous occasions. This led to Naki and Ndovya to make an application to the court to provide assistance in having the birth of their child registered.
In the court proceedings, the Centre for Child Law was granted leave to join the proceedings as the third respondent.
The main issues that the court had to deal with were whether or not the Births and Deaths Registration Act (BDRA) and its regulations allow the father of a child to register a child’s birth when the mother of the child is an immigrant whose presence in South Africa is not in accordance with law, or where the mother is absent.
The court made reference to the Constitutional Court’s direction that when dealing with matters of statutory interpretation, judicial officers should favour an interpretation that would render the provision constitutionally compliant. To this end, the High Court found that section 9 and 10 of the BDRA were constitutionally valid as they did not stipulate which parent had the duty to register the birth. The act did not prevent unmarried fathers from registering the births of their children
In relation to the regulations, the High Court found that requiring an immigrant parent to produce a valid visa or permit for the registration of the birth of a child, did in the present circumstances prevent a father from registering the birth of his child.
Furthermore, regulation 12(1) which only made provision for unmarried mothers to register the births of children, and not unmarried fathers, also prevented unmarried fathers from being able to register the birth of their children.
The court found that it could correct the defects in the regulation by “reading in” words to make the provisions constitutionally compliant.
The High Court relied on the decision of the Constitutional Court in National Coalition which set out the requirements necessary for a court to “read in” words into a provision so as not to encroach on the duties of the legislature.
The court read the words “and available” into certain sub-regulations, making the requirement to submit a permit or visa dependent on its applicability and availability.
The Court also read in the words “or father”, enabling the birth of a child born out of wedlock to be registered by either the father or the mother.
The Court however found other sub-regulations unconstitutional. These are regulations which require that where one parent is not a South African citizen, a certified copy of that parent’s valid passport and visa or permit must accompany the notice of birth, late registration of birth, or registration of a child older than one year. Also that where a child is born out of wedlock, the notice of registration must be made by the mother of the child. As the decision relates to a declaration of invalidity, it still has to be confirmed by the Constitutional Court.
The failure to register the birth of a child has important consequences for the child. Without a birth certificate, a child will not have citizenship, will not be able to register and attend school, apply for government grants, apply for an identity document, or secure employment. All of this constitutes a violation of the rights of the child as enshrined in the Constitution.
The decision in this case has made it easier to register the births of children born of a South African parent and an immigrant parent, and of children who have absent mothers.