P v REGISTRAR OF BIRTHS & ANOR

HIGH COURT, HARARE

[Opposed Application HH 406-16]

March 15 and July 7, 2016

MUNANGATI-MANONGWA J

Family law – Section 81 of the Constitution of Zimbabwe, 2013 – Right to the prompt provision of a birth certificate – Whether or not section 12 (2)(c) of the Births and Deaths Registration Act [Chapter 5:02] constitutes a reasonable limitation of rights contained under section 81 (1)(b) of the Constitution.

The applicant sought to compel the Registrar of Births and Deaths to issue a birth certificate and passport to her minor child in the family name of that child’s father. The applicant believed the requirements set by the Registrar pursuant to s 12 (2)(c) of the Births and Deaths Registration Act [Chapter 5:02] in order to obtain the child’s registration documents constituted an impediment to her enjoyment and her child’s enjoyment of constitutional rights. The applicant sought an order declaring s 12 (2)(c) of the Births and Deaths Registration Act to be unconstitutional and a violation of the right to the prompt provision of a birth certificate under s 81 (1)(b) of the Constitution of Zimbabwe, 2013.

Held, that the provisions of s 12 (2)(c) of the Births and Deaths Registration Act constituted a reasonable limitation of the rights enshrined under s 81 (1)(b) of the Constitution. If s 12 (2)(c) of the Births and Deaths Registration Act were to be removed, any woman who had a child out of wedlock (and in the absence of the alleged father) could impute paternity to anyone. The law requires adequate safeguards to prevent a man who is not the father of the child from being named as such on the mere say so of the child’s mother.

Cases cited:

Katedza v Chunga & Anor 2003 (1) ZLR 470 (H), referred to

S v Dlamini 1999 (4) SA 623 (CC), 1999 2 SACR 51 (CC), followed

S v Mhlungu and Others 1995 (3) SA 867 (CC), 1995 (2) SACR 277 (CC); 1995 (7) BCLR 793 (CC), followed

Zantsi v Council of State Ciskei and Others 1995 (4) SA 615 (CC),
referred to

Legislation considered:

Births and Deaths Registration Act [Chapter 5:02], ss 11, 11 (1), 12,
12 (2)(c)

Constitution of Zimbabwe, 2013, ss 2, 46, 56 (5), 80 (2), 81, 81 (1)(b), (c), 86,
86 (2)(a)-(f), (5), Chapter 4

Customary Marriages Act [Chapter 5:07], s 3 (5)

Books cited:

Concise Oxford English Dictionary, 2011

Currie I and De Waal J (eds) The Bill of Rights Handbook (5th edn, Juta & Co Ltd, Cape Town, 2005) p 176

Shorter Oxford English Dictionary, Vol 1

International Instruments and Treaties:

African Charter on the Rights and Welfare of Children

United Nations Convention for the Rights of the Child

S Nkomo, for the applicant

C Chopamba, for the respondents

MUNANGATI-MANONGWA J:

In this opposed application, the applicant seeks to compel the first respondent, the Registrar of Births and Deaths, to issue a birth certificate to her minor child in the family name of that child’s father. Secondly, she wants a passport to be issued to the child. The first respondent has set out requirements which the applicant has to meet in terms of the Act that the first respondent administers, in particular s 12 (2)(c) of the Births and Deaths Registration Act [Chapter 5:02] (hereinafter referred to as “the Act”). The applicant, believing the set requirements are an impediment to her enjoyment and her child’s enjoyment of constitutional rights, seeks to have s 12 (2)(c) of the Act declared to be ultra vires the Constitution and therefore null and void.

The application is opposed by the civil division on behalf of the first respondent on the basis that there is nothing unconstitutional about the particular section of the Act.

Factual background

The applicant who was in an unregistered customary law union had the misfortune of losing her husband on 10 June 2010 before the parties procured a birth certificate for their minor child, TNJ, born on 2 April 2010. Prior to his death, the applicant’s husband had assaulted her causing injuries which led to health complications. The applicant then sought medical treatment in South Africa where certain procedures could not be done when pregnant. When she ultimately gave birth, she needed to travel to South Africa and to take her baby with her. In seeking to procure a birth certificate for the minor child in order to then get a passport for her, she met with hurdles.

When approached to issue a birth certificate for the child in the child’s father’s family name, the first respondent, as the Registrar of Births and Deaths advised that in the absence of the husband’s relatives as required by
s 12 (2)(c) of the Act, he would not issue the minor child with a birth certificate in the family name. He further advised the applicant that alternatively he would only issue the birth certificate on the strength of a court order “because doing so in the absence of a court order will be a breach of the statute enacted for purposes of governing issuance of vital identity documents” – see para 7 of the respondent’s opposing affidavit. However, applicant was faced with a situation where the late husband’s relatives were not willing to assist. Aggrieved by the first respondent’s stance, the applicant approached this Court seeking an order compelling first respondent to issue the minor child with a birth certificate.

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