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J v Minister of Home Affairs [2023] ZAECQBHC 1

JOLWANA J

10 January 2023

FAMILY – Children – Birth certificate – Father’s details where child born outside marriage – Requirement that father be legally in South Africa – Births and Deaths Registration Act 51 of 1992 – Regulation 12(2)(c) of the Births and Deaths Registrations Act is unconstitutional and invalid in so far as the child’s unmarried father may not be in South Africa or may not be in South Africa legally.

Facts: Applicants are the biological parents of the child who live together as husband and wife even though they are not married. The mother is a South African citizen and the father a citizen of Bulgaria who came to South Africa on a visa which has now expired so that his presence in South Africa is illegal. The parents (applicants) attempted to register the father as such with at the Department of Home Affairs, but this was refused because he was no longer legally in the country and, as he was not a South African citizen, the results of a paternity test were required to prove that he is in fact the biological father of the minor child.

Application: For the amendment of an abridged birth certificate of the child to include the details of the child’s biological father and a challenge to the constitutionality of Regulation 12(2)(c) of the Registrations Act.

Discussion: The amendment of the birth registration details and section 11 of the Births and Deaths Registration Act 51 of 1992; the constitutionality of Regulation 12(2)(c) of the Registration Act; the constitutional rights of minor children in the Children’s Act 38 of 2005; the contention by the applicants that the effect of Regulation 12(2)(c) is that a father who is a foreigner may not be identified as the father of the child born outside of the bonds of marriage on the child’s birth certificate, unless that father is legally in South Africa; and the contention that the child is prejudiced and discriminated against irrationally on the basis of Regulation 12(2)(c) because of the circumstances of her or his birth.

Findings: The Regulation is unconstitutional and irrational, considering that the father was not able to renew his visa for reasons that had nothing to do with the child and his right to have the identity of his father officially recognised. The identity of his father is intertwined with his own identity, both of which are interlinked with his cultural identity. The rights of the child to dignity were imperilled by the Regulation and its resolute enforcement by the department.

Order: It is declared that Regulation 12(2)(c) is unconstitutional and invalid in so far as the child’s unmarried father may not be in South Africa or may not be in South Africa legally.

JOLWANA J

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