South Africa: N and Others v Director General: Department of Home Affairs and Another

Published: 27/Jun/2018
Source: High Court of South Africa, Eastern Cape Division (Grahamstown)

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

Factual background

[1] The first applicant, a South African Citizen and member of the South African National Defence Force, and the second applicant, a citizen of the Democratic Republic of Congo (DRC), met whilst the former was posted in the DRC as a peacekeeper. They fell in love and out of that love relationship two children were born. Later, they married each other in the DRC and in accordance with the second applicant’s culture and customs. The content of the second applicant’s culture and of the customary marriage between the applicants is irrelevant for purposes of the issue that has to be decided in this application. Importantly, the applicants’ marriage was not registered and no marriage certificate was issued to them because in the DRC, customary marriages are not registered.

[2] The first applicant’s first involvement in a peace mission in the DRC ended in 2009 when he returned to South Africa and continued to work for the SANDF, leaving the second applicant in the DRC but maintained contact with her. In 2013, the first applicant was posted by the SANDF on another peace keeping mission in the DRC and came back to South Africa in 2014. Again, he left the second applicant in the DRC.

[3] In September 2015, the second applicant came to South Africa. She travelled using her DRC passport having been issued, on 23 September 2015, with a visitor’s visa which was valid for three months in Lubumbashi, DRC. At the time of expiration of the second applicant’s visitor’s visa, she was highly pregnant and thus could not apply for a new visa inasmuch as she could not travel back to the DRC. She gave birth to NN[1] at Settler’s Hospital in Grahamstown on 01 February 2016. On discharge from Settler’s Hospital, she was given a document titled “Department of Home Health, Maternity Certificate Proof of Birth of Infant” to complete and submit to the respondents’ department in order to apply for the issue of NN’s birth certificate.

[4] During February 2016, the applicants approached the offices of the Department of Home Affairs, presumably in Grahamstown, submitted the duly completed document titled “Department of Home Health, Maternity Certificate Proof of Birth of Infant” to the officials present thereat. The officials present thereat refused to accept the application. They left but went back again, still in February 2016 when they were told that the Regulations on the Registration of Births and Deaths, 2014 (Regulations) prevented the second respondent’s department’s officials from registering NN’s birth.

[5] Effectively, though a South African citizen[2] the failure to register NN’s birth and to issue for her, of a birth certificate, meant that she is not accounted for in the population register that is administered by the second respondent,[3] and no citizenship and other interrelated constitutional rights can be enforced by her parents on her behalf.

Read on SAFLII:

Themes: Acquisition by children, Birth Registration
Regions: South Africa
Year: 2018