|The First Applicant (“MLN”), South African Citizen and member of South African National Defence Force, and the Second Applicant (“DMN”), a citizen of the Democratic Republic of Congo (“DRC”) (collectively referred to as “the Parties”), met whilst DMN was posted in the DRC as a peacekeeper. The Parties married in DRC, their marriage, however, not registered and no marriage certificate issued as is the norm with customary marriages in the DRC.
MLN returned to South Africa in 2014, whilst DMN came to SA during September 2015 on a visitor’s visa, valid for three months. Upon DMN’s visa expiring she was too heavily pregnant to travel back to the DRC. DMN gave birth to the Parties’ child, “NN”, on 1 February 2016 in South Africa. Upon being discharged, the relevant hospital provided MLN with documents to complete and submit to the Respondent’s department (Department of Home Affairs, hereafter referred to as “Department”), in order to apply for NN’s birth certificate.
The Parties submitted the requisite forms to the Department but were refused the application as the Regulations on the Registration of Births and Deaths, 2014 (“the Regulations”) prevented the Department from registering NN’s birth. Effectively meaning that the failure to register NN’s birth meant that she is not accounted for in the population register and she will therefore not be afforded citizenship, the Parties also may not enforce any other interrelated constitutional rights on her behalf. Accordingly, the Parties approached the Court for relief.
On 4 April 2017, the Parties were granted relief and the High Court of the Eastern Cape Division granted an order which allowed for the reviewing, setting aside and declaring the decision taken by the Department to refuse to register the birth of NN, invalid; and directing the Department to do all things necessary to register NN’s birth in terms of section 9(3A) of the Births and Deaths Registration Act 51 of 1992 (“the Act”).
The issues which remained here was the constitutionality of sections 9, 10 of the Act and the constitutionality of sub-regulations (3) and (5) of regulations 3, 4 & 5 of the Regulations (“ the sub-regulations”), which is alleged to deny the father of a child the right to register the child’s birth, in the event where the child’s mother is a foreigner, whose presence in the Republic may not be in accordance with the law and/or in the absence of the child’s mother.
The next question before the Court is whether the Court can interpret sections 9 and 10 and the sub-regulations in a manner that is consistent with and gives effect to the rights in sections 28(1)(a) and (2) of the Constitution of South Africa (“Constitution”). This determination of this question surrounds the interpretation of the ACT. The Court, therefore, referred to the case of Cool Ideas 1186 CC v Hubbard and another  ZACC 16, wherein, the Constitutional Court held that when Courts interpret a statute, it must consider the language, purpose and context of such a statue and must endeavour to interpret it in a manner that renders the statute constitutionally compliant.
Sections 9 and 10 of the ACT regulate the registration and notification of births of children born alive. Section 9, in particular, permits that notification of the birth of a child born alive may be given by any one of his/her parents. The section refers to “any child born alive” without differentiation as to whether such child was born to married parents. Thus, confirming that the requirement in section 9 is that the child must have been born alive and not that the child’s parents must be married. In terms of section 10(1)(a) of Act, the Court held that on its current formulation, the ACT does not forbid unmarried fathers to register the births of their children in the absence of the mother. The requirement is that such a child be born alive, in which event any one of the parents, would be able to give the notice. This interpretation is not only faithful to the wording of the statute, but also leaves the statute constitutionally compliant since it does not strain the meaning of the words employed therein.
Turning to the Regulations, the Court held that it cannot see any justification as to why sub-regulations (3)(a), (b), (c), (d), (e), (g), (h), (j) to regulations 3, 4 and 5 should be altered. The Court, however, held that the interpretation of sub-regulations (3)(f), (i) and (5) to regulations 3, 4, 5 and sub-regulation (1) to regulation 12, (“the Sub-Regulations”) was not consistent with nor gave effect to the rights in sections 28(1)(a) and (2) of the Constitution. The Sub-Regulations clearly provide that if a requirement of sub-regulations (3) to regulations 3, 4, 5 are not met, notice of such a birth shall not be accepted and there will be no registration of such a birth, inhibiting access to the rights in sections 28(1)(a) and (2) of the Constitution. The Court therefore declared such sub-regulations inconsistent with the Constitution.
Following the above determination by the Court, it held that the most equitable resolution would be to read words into the sub-regulations to ensure compatibility with the Constitution. Referring to the dictum in Gaertner and others v Minister of Finance and others 2014 (1) SA 442 (CC) which held that “reading-in” should be considered sparingly not to infringe on the separation of powers between courts and legislatures, the Constitutional Court also summarised the applicable principles when considering whether or not to employ “reading-in” as a remedial measure. It held firstly that the provision which results from reading words into a statute should be consistent with the Constitution; secondly, the result achieved should interfere with laws adopted by the Legislature as little as possible; that a court should be able to define with sufficient precision how the statute ought to be extended in order to comply with the Constitution; fourthly, that a court should endeavour to be as faithful as possible to the legislative scheme within the constraints of the Constitution; and finally that reading in must not to be granted where it would result in an unsupportable budgetary intrusion.
The Court held that it is had complied with the above and proceeded to read in words to the Sub-Regulations to ensure compliance with section 28(1)(a) and (2) of the Constitution. The Court added that regard was had to the fact that the Legislature may at any time amend or vary the regulations, the reading-in method adopted herein does not impermissibly intrude upon the domain of the Legislature and is being preferred by this Court to a generally bald declaration of invalidity since its interference with the regulations is minimal.
|1. The application to declare sections 9 and 10 of the Birth and Deaths Registration Act unconstitutional, is dismissed.
2. The Sub-Regulations are declared unconstitutional.
3. In order to cure the defects in the Sub-Regulations, it shall be read in:
(i)before the word “a” at the commencement of sub-regulations (3)(f) to regulations 3, 4 and 5 the words “where it is available,”;
(ii)immediately after the word “applicable” in sub-regulations (3)(i) to regulations 3, 4 and 5 the words “and available”;
(iii)immediately after the word “by” to sub-regulations (1) of regulation 12 the words “either” and after the word “mother” in that sub-regulations the words “or father”.
4. sub-regulation (5) to regulations 3, 4 and 5 is declared unconstitutional and invalid.
5. The Department and Minister of Home Affairs are directed to pay costs of the application, jointly and severally, the one paying the other to be absolved.
The Court clarified the constitutionality of the previous sub-regulations of the Birth and Deaths Registration Act, specifically where the regulation bars a child’s father from registering the child’s birth, in the event the child’s mother is a foreigner, whose presence in the Republic may not be in accordance with the law and/or in the absence of the child’s mother.
Written by Danmari Bouwer and supervised by Jeannique Booysen