THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO.: CCT 101/2020 APPEAL CASE NO: CA319/2018 COURT A QUO CASE NUMBER: 4996/2016 In the matter between:
CENTRE FOR CHILD LAW Appellant
And
DIRECTOR – GENERAL: DEPARTMENT OF HOME AFFAIRS First Respondent
THE MINISTER OF HOME AFFAIRS Second Respondent
MENZILE LAWRENCE NAKI Third Respondent
DIMITRILA MARIE NDOVYA Fourth Respondent
___________________________________________________________________________
APPLICANT’S PRACTICE NOTE
APPLICANT: CENTRE FOR CHILD LAW (CCL)
1. The Centre for Child Law (CCL) seeks confirmation of the unanimous order handed down by the full bench of the Eastern Cape Division of the High Court, sitting on appeal (the Appeal Court) on 19 May 2020, in terms of sections 167(5) and 172(2)(a) of the Constitution, read with Rule 16(4) of the Constitutional Court Rules.
2. This application for confirmation concerns the constitutional validity of Section 10 of the Births and Deaths Registration Act 51 of 1992 (BDRA).
3. The CCL contends that Section 10 of the BDRA excludes unmarried fathers from registering their children under the father’s surname in the absence of the mother or mother’s consent.
2. To date, these proceedings have been uncontested.
Names and contact of counsel for CCL
Jatheen Bhima: 072 125 6211
Thulamela Chambers, Sandton
Nosisa Kekana: 079 516 8215
[email protected] Thulamela Chambers, Sandton
CCL’s Submissions
3.1. CCL contends that Section 10 of the BDRA is unconstitutional, because:
3.1.1. It prevents children born to unmarried fathers from giving notice of the child’s birth under the surname of the father in the absence of the mother;
3.1.2. It unlawfully discriminates against children born out of wedlock and unmarried fathers;
3.1.3. The result is that children are not able to fully realise constitutionally guaranteed rights, such as:
3.1.3.1. Section 28(1)(a): Every child has the right to a name and nationality from birth;
3.1.3.2. Section 28(2): A child’s best interests are of paramount importance in every matter concerning the child;
3.1.3.3. Section 3(2)(a): All citizens are equally entitled to the rights, privileges and benefits of citizenship;
3.1.3.4. Section 9(3): The right to vote;
3.1.3.5. Section 10: Everyone has inherent dignity and the right to have their dignity respected and protected;
3.1.3.6. Section 20: No citizen may be deprived of citizenship;
3.1.3.7. Section 27: The right to healthcare; and
3.1.3.8. Section 29: The right to education.
Issues to be determined
4. Whether Section 10 of the BDRA is unconstitutional to the extent that it is under-inclusive and prevents unmarried fathers from registering their children under the father’s surname in the absence of the mother or mother’s consent.
Relief Sought
5. The CCL seeks the following order:
5.1. The order of the Appeal Court is confirmed.
5.2. It is declared that section 10 of the BDRA is invalid and unconstitutional to the extent that is does not allow unmarried fathers to register the births of their children under the father’s surname in the absence of the mothers.
5.3. The declaration of constitutional invalidity is suspended for a period of 18 months from the date of this judgment in order to allow Parliament to correct the defects in section 10 of the BDRA.
5.4. As interim remedy to endure during the aforesaid period of suspension, Section 10 of the BDRA is deemed to read as:
5.4.1. Section 10 – Notice of birth of a child born out of wedlock shall be given:
5.4.1.1. under the surname of the mother; or
5.4.1.2. under the surname of the father where the father is the person giving notice of the child’s birth and acknowledges his paternity in writing under oath; or
5.4.1.3. at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child.
Estimate of the probable duration of submissions
6. 60 minutes, should the matter remain uncontested
Reference to the Record
7. CCL makes specific reference to the follows parts of the record:
7.1. Record Volume 1 Court Order: Louw J dated 4 April 2017, pp 64 – 65
7.2. Record Volume 1 Court Order: Louw J dated 29 August 2017, pp 66 – 67
7.3. Record Volume 1, Founding Affidavit of Anjuli Leila Maistry, pp 86 – 98, paras 32 – 43.
7.4. Record Volume 2, Annexure ALM7 “Open Society Justice Initiative - Children’s right to a nationality”, pp 151 – 152
7.5. Record Volume 2 Judgment: Bodlani AJ, pp 165
7.6. Record Volume 2, Notice of Appeal, par 2.1, pp 198 – 199
7.7. Record Appeal Court Judgement, pp 207 – 222
7.8. Record: Appeal Court Judgement, page 208 at par 3
Jatheen Bhima
Nosisa Kekana
Counsel for CCL
Thulamela Chambers, Sandton
28 July 2020
APPELLANT’S LIST OF AUTHORITIES
Cases
1. S v Makwanyane [1995] ZACC 3
2. Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC)
3. Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12
4. Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC)
5. Petersen v Maintenance Officer, Simon's Town Maintenance Court, and Others 2004 (2) SA 56 (C)
6. Khosa and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC)
7. Hadebe v Minister of Home Affairs 2006 JDR 1071 D
8. AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC)
9. S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
10. Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC)
11. Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC)
12. C and Others v Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC)
13. Centre For Child Law and Others v Minister of Basic Education and Others 2013 (3) SA 183 (ECG)
14. Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development 2014 (2) SA 168 (CC)
15. J v NDPP 2014 (2) SACR 1 (CC)
16. Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC)
17. Minister of Home Affairs and Others v DGLR and Another (SCA case no.: 38429/13) unreported case
18. L v H and Another [2018] ZAKZDHC 58
19. Centre For Child Law and Others v Minister of Basic Education and Others 2020 (3) SA 141 (ECG)
Legislation
1. Births and Deaths Registration Act 51 of 1992 (BDRA)
2. Citizenship Act 88 of 1995
3. Constitution of the Republic of South Africa, 1996
4. Convention on the Rights of the Child – United Nations Human Rights
