M.N and Others v Director General: Department of Home Affair and Another (4996/2016) [2018] ZAECGHC 90; [2018] 3 All SA 802 (ECG) (27 June 2018)

M.N and Others v Director General: Department of Home Affair and Another (4996/2016) [2018] ZAECGHC 90; [2018] 3 All SA 802 (ECG) (27 June 2018)

Sections 9 and 10 of the BDRA do not prevent unmarried fathers from registering the births of their children in the absence of the mother; the statutory language allows any parent to give notice of birth. However, certain subregulations of the Regulations on the Registration of Births and Deaths, 2014—specifically subregulations (3)(f), (i), and (5) to Regulations 3, 4, and 5, and subregulation (1) to Regulation 12—create unconstitutional barriers to birth registration where the mother is absent or undocumented. These barriers unjustifiably limit children's rights under sections 28(1)(a) and (2) of the Constitution. The court found that the defects in the regulations could be cured by...

Citation
[2018] ZAECGHC 90
Parties
Applicant: M N; Applicant: D N; Applicant: Centre for Child Law; Respondent: Director General: Department of Home Affairs; Respondent: Minister of Home Affairs
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
27 June 2018
Case Number
4996/2016
Procedural Posture
Review Application / Final Judgment After Uncontested Opposed Motion; Applicants Sought Review and Constitutional Relief Regarding Birth Registration Regulations.
Outcome
Application to declare sections 9 and 10 of the BDRA invalid dismissed; impugned regulations declared unconstitutional and remedied by reading in; costs awarded to applicants.
Judges
Bodlani
Legal Topics
Birth Registration, Unmarried Fathers Rights, Constitutional Invalidity, Reading in Remedy, Children S Rights, Statutory Interpretation
Constitutional Law Family and Children Administrative Law Birth Registration Unmarried Fathers Rights Constitutional Invalidity Reading in Remedy Children S Rights +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 15 Party arguments 2
Sign in to unlock

Parties

M N

Applicant

D N

Applicant

Centre for Child Law

Applicant

Director General: Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Final Judgment After Uncontested Opposed Motion; Applicants Sought Review and Constitutional Relief Regarding Birth Registration Regulations.

Legal Issues

  1. 1 Whether sections 9 and 10 of the Births and Deaths Registration Act (BDRA) and certain regulations prevent fathers from registering the births of their children in the absence of the mother.
  2. 2 Whether the impugned statutory and regulatory provisions are unconstitutional for limiting children's rights to birth registration and citizenship.
  3. 3 Whether the court can interpret or read in words to the regulations to render them constitutionally compliant.

Ratio Decidendi

Sections 9 and 10 of the BDRA do not prevent unmarried fathers from registering the births of their children in the absence of the mother; the statutory language allows any parent to give notice of birth. However, certain subregulations of the Regulations on the Registration of Births and Deaths, 2014—specifically subregulations (3)(f), (i), and (5) to Regulations 3, 4, and 5, and subregulation (1) to Regulation 12—create unconstitutional barriers to birth registration where the mother is absent or undocumented. These barriers unjustifiably limit children's rights under sections 28(1)(a) and (2) of the Constitution. The court found that the defects in the regulations could be cured by...

Court Disposition

Application to declare sections 9 and 10 of the BDRA invalid dismissed; impugned regulations declared unconstitutional and remedied by reading in; costs awarded to applicants.

Orders

  • The application to declare invalid and unconstitutional sections 9 and 10 of the Birth and Deaths Registration Act, 1992 is dismissed.
  • Subregulations (3)(f) and (i); (5) to Regulations 3, 4, 5; and subregulation (1) to Regulation 12 of the Regulations on the Registration of Births and Deaths, 2014 are declared unconstitutional.