D v D and Another (1751/2014) [2014] ZAFSHC 159 (11 September 2014)

Parties

Procedural Posture

Urgent Application / Opposed Application for Mandatory Order

Legal Issues

1. 1 Whether the court can authorise and direct the Department of Home Affairs to consider altering the surname of the minor child without the prescribed consent of the father as envisaged in section 25(2) of the Births and Deaths Registration Act.
2. 2 Whether the first respondent should be compelled to sign documentation required for the issuing of a passport for the minor child.
3. 3 Whether the applicant is entitled to exemption from the father's consent for the alteration of the minor child's surname.

Ratio Decidendi

The court found that the applicant had custody and care of the minor child and that the first respondent was unreasonable in withholding his consent for the alteration of the child's surname and for the issuance of a passport. The best interests of the child, as enshrined in section 28(2) of the Constitution, required that the applicant be able to perform parental duties without unnecessary hindrance. The court held that the applicant was entitled to exemption from the father's consent for the surname alteration and that the first respondent should be compelled to sign the necessary documentation for the passport. The Children’s Act supersedes common law regarding parental rights and...

Court Disposition

Application granted. Orders made in favour of the applicant.

Orders

• The Department of Home Affairs is authorised and directed to consider altering the surname of the minor child to that of the applicant without the prescribed consent of the first respondent as envisaged in section 25(2) of the Births and Deaths Registration Act 51 of 1992.
• The first respondent is ordered to sign any documents required by the Department of Home Affairs for the issuing of a passport to the minor child and to do all acts necessary to give effect to the issuing of the passport and visa within 14 days after service of this order.