Source: Supreme Court of Zimbabwe
T v Registrar General of Births and Deaths (135/07) ((135/07))  ZWSC 26 (20 October 2008)
Judgment No. SC 25/08
Civil Appeal No. 135/07
Mrs. T v REGISTRAR GENERAL OF BIRTHS AND DEATHS
SUPREME COURT OF ZIMBABWE
MALABA JA, ZIYAMBI JA & GARWE JA
HARARE, JANUARY 14 & OCTOBER 21, 2008
N P Munangati, for the appellant
M Chimombe, for the respondent
MALABA JA: This is an appeal against the judgment of the High Court given on 30 July 2007 dismissing with costs an application by the appellant for an order declaring that the decision by the respondent to cancel registrations of the births of two children of the appellant was void.
The facts of the case are these. The appellant is the mother of two children, X born on [date] 1995 and Y born on [date] 1997. The respondent is the officer-in-charge of the Central Registering Office for all notices of births. He has the power under s 8(1) of the Births and Deaths Registration Act [Cap 5:02] (the Act) to direct the correction of any error in any register, whether it is a clerical error or an error of fact or substance if he discovers the error himself or upon an application by any person.
In 1985 the appellant solemnized a customary marriage with one Mr. T in terms of the Customary Law Marriages Act [Cap 5:07]. She did not know at the time that Mr. T had on [date] 1963 solemnized a civil marriage with one G.M. in terms of the Marriages Act [Cap 5:11]. The appellant bona fide believed that Mr. T was a bachelor. It was not suggested that she had knowledge of the existence of the other marriage during the time she lived with Mr. T as husband and wife. Theirs was therefore a putative marriage.
After the birth of each child, the appellant and Mr. T gave notice of the birth and its particulars to the Registrar for purposes of registration. As a result of the information they supplied, the name of Mr. T was entered in the register as the father of each child. He loved and cared for the children as their father.
It is also important to note that a finding of the existence of an error in a register attracts correction of the error whilst a finding that false information was given to a Registrar for the purposes of obtaining registration of a birth leads to the cancellation of the entry itself. Section 8(3) of the Act specifically prohibits the erasure of the original entry by the respondent in the exercise of his powers under s 8(1). A careful examination of the various provisions of the Act shows that the power to order cancellation of an entry in a register vests in a court. The respondent can only cancel an entry in the Register upon an order of a court. Section 27(2)(a) of the Act makes it an offence to wilfully give any false information for the purposes of the registration of a birth of a child. Section 27(4)(b) provides that without derogation from its powers in any civil proceedings, a court may, at the conclusion of any criminal proceedings, order the Registrar to delete or remove any false information or entry in the register. It was for a court to make a finding that the entry made in the register to the effect that Mr. T was the father of the children was false. As the respondent purported to cancel the birth certificates of the children without having been ordered by a Court to do so his action was unlawful.
The appeal succeeds with costs. The order of the court a quo is set aside and substituted with the following –
The decision of the respondent to cancel the birth certificates of the minor children X (born [date] 1995) and Y (born [date] 1997) is null and void.
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