High Court rules children born in South Africa can be registered, regardless of their parents’ legal status

Source: Groundup, 28/08/2018

There are serious consequences for children’s rights if their births
are not registered
A decision of the Eastern Cape High Court in Grahamstown ensures
access to birth registration for all children born in South Africa
regardless of the legal status of their parents.
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.
The court proceedings
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.
Why is the case important?
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.