U.J.D.J and Another v Minister of Home Affairs and Another (1986/2021) [2023] ZAECQBHC 1; 2023 (4) SA 279 (ECGq) (10 January 2023)

U.J.D.J and Another v Minister of Home Affairs and Another (1986/2021) [2023] ZAECQBHC 1; 2023 (4) SA 279 (ECGq) (10 January 2023)

The court found that Regulation 12(2)(c) of the Births and Deaths Registration Act is unconstitutional and invalid to the extent that it discriminates against children whose unmarried fathers are not legally present in South Africa. The regulation irrationally links the father's legal status to the child's right to...

Source-derived case information.

Citation
[2023] ZAECQBHC 1
Parties
Applicant: U.J.D.J; Applicant: V.K.G; Respondent: Minister of Home Affairs; Respondent: Ms Mbebe NO
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
10 January 2023
Case Number
1986/2021
Procedural Posture
Constitutional Application / Opposed Motion; Judgment on Merits and Constitutional Challenge
Outcome
Application granted. Regulation 12(2)(c) declared unconstitutional and invalid. Respondents ordered to pay costs on attorney and client scale.
Judges
M.S. Jolwana
Legal Topics
Birth Certificate Amendment, Unlawful Discrimination, Best Interests of Child, Regulation 12 2 C Constitutionality, Children S Act, Separation of Powers
Family and Children Constitutional Law Administrative Law Birth Certificate Amendment Unlawful Discrimination Best Interests of Child Regulation 12 2 C Constitutionality Children S Act +1 more

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Summary, issues, holding and outcome

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Parties

U.J.D.J

Applicant

V.K.G

Applicant

Minister of Home Affairs

Respondent

Ms Mbebe NO

Respondent

Procedural Posture

Constitutional Application / Opposed Motion; Judgment on Merits and Constitutional Challenge

Legal Issues

  1. 1 Whether Regulation 12(2)(c) of the Births and Deaths Registration Act is unconstitutional for discriminating against children whose unmarried fathers are not legally present in South Africa.
  2. 2 Whether the court should pronounce on the constitutionality of the regulation despite the respondents conceding the main relief.
  3. 3 Whether the applicants are entitled to a punitive costs order against the respondents.

Ratio Decidendi

The court found that Regulation 12(2)(c) of the Births and Deaths Registration Act is unconstitutional and invalid to the extent that it discriminates against children whose unmarried fathers are not legally present in South Africa. The regulation irrationally links the father's legal status to the child's right to have his parentage recorded, which unjustifiably infringes the child's constitutional rights to dignity, equality, and identity. The court held that the issue was neither moot nor not ripe, as the respondents' concession did not address the underlying constitutional defect, and similar discrimination continues to affect many children nationwide. The court emphasized its duty to...

Court Disposition

Application granted. Regulation 12(2)(c) declared unconstitutional and invalid. Respondents ordered to pay costs on attorney and client scale.

Orders

  • Regulation 12(2)(c) of the Births and Deaths Registrations Act is declared unconstitutional and invalid insofar as it prevents the recording of an unmarried father's details where he may not be in South Africa or may not be in South Africa legally.
  • The respondents are ordered to pay the costs of this application on an attorney and client scale, including the costs occasioned by the employment of two counsel.