Munyai and Another v Director General of Home Affairs and Another [2023] ZAGPPHC 267; 2024 (2) SA 635 (GP) (6 April 2023)

Munyai and Another v Director General of Home Affairs and Another [2023] ZAGPPHC 267; 2024 (2) SA 635 (GP) (6 April 2023)

The court found that the Department's insistence on a paternity test for a foreign father in cases of children born out of wedlock is not mandated by the Births and Deaths Registration Act and that such a requirement, as set out in Departmental Circular 5 of 2014, unduly infringes the rights of the minor child. The affidavits deposed by both parents are sufficient to establish paternity and to register the father's details. The court emphasized the constitutional imperative to protect the best interests of the child, including the right to identity, access to education, healthcare, and social assistance. The Department's bureaucratic delays and rigid application of the circular resulted...

Citation
[2023] ZAGPPHC 267
Parties
Applicant: Khodani Harriet Munyai; Applicant: Robert Munyaradzi Kugwa; Respondent: Director General of Home Affairs; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 April 2023
Case Number
2022-007052
Procedural Posture
Review Application / Unopposed Application for Mandatory Order
Outcome
Application granted. Mandatory order issued against the Department of Home Affairs.
Judges
WJ Du Plessis
Legal Topics
Birth Registration, Rights of Children, Departmental Circulars, Best Interests of Child
Family and Children Administrative Law Birth Registration Rights of Children Departmental Circulars Best Interests of Child

Case Brief

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Parties

Khodani Harriet Munyai

Applicant

Robert Munyaradzi Kugwa

Applicant

Director General of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Unopposed Application for Mandatory Order

Legal Issues

  1. 1 Whether the Department of Home Affairs may require a paternity test for registration of a foreign father's details when the child is born out of wedlock.
  2. 2 Whether the Departmental Circular 5 of 2014 unduly infringes the rights of the child under the Births and Deaths Registration Act.
  3. 3 Whether affidavits by both parents are sufficient to register the father's details in terms of the Act.

Ratio Decidendi

The court found that the Department's insistence on a paternity test for a foreign father in cases of children born out of wedlock is not mandated by the Births and Deaths Registration Act and that such a requirement, as set out in Departmental Circular 5 of 2014, unduly infringes the rights of the minor child. The affidavits deposed by both parents are sufficient to establish paternity and to register the father's details. The court emphasized the constitutional imperative to protect the best interests of the child, including the right to identity, access to education, healthcare, and social assistance. The Department's bureaucratic delays and rigid application of the circular resulted...

Court Disposition

Application granted. Mandatory order issued against the Department of Home Affairs.

Orders

  • The First Respondent, alternatively the Second Respondent, is directed within 20 days to take all steps necessary in Section 9 of the Births and Deaths Registration Act 51 of 1992, to register the birth of the minor child T[....] M[....] C[....] K[....], born on 20 September 2019.