South Africa: Western Cape High Court, Cape Town

27.         Respondents aver that the applicable regime is not s 10 of the BADRA (dealing with the initial birth registration of a child born outside of marital bonds) but rather s 11 (dealing with amendments to a birth certificate of a child born outside of marriage). I agree, albeit in part only (see below in paragraphs 38 to 44).  

28.         Respondents’ Counsel argued that if I agree, then First Applicant’s petition for relief under the BADRA must fail. I disagree. For the reasons outlined below in the paragraphs 29 to 35, I find that there no justifiable basis to non-suit him under the BADRA. Also, the interests of justice militate against such a ruling. 

29.         I was partly guided by what was held in R v Hepworth 1928 AD 265 at 277:

‘A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.’

30.         More recently, Koen J (as he then was), in S v Zuma and another 2023 (1) SACR 621 (KZP), enjoined judicial officers to be mindful that they are not only in the vanguard for the protection of the Constitution, 1996 (the Constitution) but also of public trust and confidence in the judicial system set up to administer justice in our constitutional dispensation. To this end, Koen J wrote instructively:  

‘[23] … (a)      A court must ensure that public confidence in the justice system is maintained and not eroded;

(b)        Litigants should leave the court with a sense that they were given a fair opportunity to present their case, and that they received a decision that is not only actually, but also perceived to be, fair, dispassionate, objective and free of bias.’[4]

31.         I also took into account that First Applicant is a lay person without formal legal education or qualification. Although he showed an appreciably higher level of knowledge and understanding of high court rules and this Division’s practice directives as compared with other lay litigants, he remains a lay person who represents himself because he cannot afford a lawyer. He accessed the hallowed corridors of this Court on his own seeking justice in the form of an order obliging state actors to respect his and his children’s constitutional rights.

32.         I also considered that while an applicant must stand or fall by the founding papers, an applicant does not, generally, have to plead the law. In this case, the First Applicant pleaded his case with sufficient particularity that made it clear to the Respondents and I as to what he sought. He expressly pleaded that he seeks an order authorising the inclusion of his details as father in the birth certificates of PKM and VKM, and that this claim is rooted in the BADRA.

33.         In his founding papers, First Applicant explained the process followed by the Second Applicant and the Respondents’ officials which led to the issuance of PKM and VKM’s birth certificates pursuant to s 10 of the BADRA without the inclusion of his details as the children’s biological father. He objects to this state of affairs. He relies on his rights as recognised in Centre for Child Law v Director General: Department of Home Affairs and others 2022 (2) SA 131 (CC).

34.         In reaching my decision against non-suiting the First Applicant, I also considered the paramountcy of the best interests of PKM and VKM, and that the Respondents’ refusal to register First Applicant as father is an on-going form of humiliation - it offends not only the First Applicant’s dignity rights in s 10 of the Constitution, but also the children’s dignity too.[5]

35.         First Applicant acts in his own interest and in his sons’ interests, as is envisaged by s 38(a) and (b) of the Constitution. He seeks to end a violation of their constitutional rights by state parties. If I were to non-suit the First Applicant, then I would be non-suiting the children too and permit on-going violations of their, and First Applicant’s, constitutional rights. That is an unpalatable outcome. 

36.         As regards the dignity of the applicants and their minor sons, it is a matter of real concern that the BADRA (and its regulations), as well as the Children’s Act, continue to use the offensive expression ‘child born out of wedlock’. In Centre for Child Law supra para 69, the apex court reminded us that this is ‘outmoded legal terminology which goes to the core of dignity’. The court wrote:  

‘The use of the expression “born out of wedlock” to describe a child undoubtedly injures their dignity and implies that they are not worthy of equal respect and concern.  The continued distinction between children born within or out of wedlock, which the impugned law conveys, stigmatises the latter category of children.’

37.         Words matter, especially in a court judgment. Therefore, except when quoting from relevant provisions in a law, this judgment will not perpetuate the stigma attached when the prevailing law brands PKM and VKM (and other children like them) as ‘born out of wedlock’. Rather, they will be referred to as being ‘born outside of marital bonds’. See Centre for Child Law supra para 71.

38.         I now revert to the Respondents’ case alluded to above in paragraph 27. Their Counsel argued that the legal framework which applies here is ss 11(4) and (4A)[6] of the BADRA headed ‘Amendment of birth registration of child born out of wedlock’, read with regs 12[7] and 14(2)[8] of the Regulations on the Births and Deaths, 2014 promulgated by First Respondent under GN R128 in GG 37373 of 26 February 2014 in accordance with his delegated powers under s 32 of the BADRA. For the cogent reasons that follow, I find that this is not so.

39.         In cases where s 11(4) applies (ie, when amendments to a birth certificate occur with a mother’s consent), then s 11(4A) makes it compulsory (‘shall be supported’) for a father of a child born outside of marital bonds to provide proof of paternity by way of a DNA test result. Without such scientific proof of paternity, the amendment cannot be effected, despite the mother’s consent.

40.         At the hearing, First Applicant argued that I should declare ss 11(4), (4A), and (5) unconstitutional. As this issue is not properly before me in the pleadings, I will not enter those waters. I will proceed to determine this case on the basis that the relevant provisions in s 11 are valid (until a court determines otherwise).

41.         There is nothing in the applicants’ pleadings indicating that Second Applicant consented to the amendment of the birth certificates to record First Applicant’s particulars as father of PKM and VKM. At the hearing, she urged this Court to allow the First Applicant to remain in South Africa and to prevent his deportation. (I deal with the immigration issue later in this judgment.) From the bar, she described him as a loving father who has strong bonds with PKM and VKM. From the bar, she confirmed that, as stated in the founding papers, the First Applicant supports her and the children financially. These facts are undisputed.

42.         Second Applicant’s concern about the First Applicant’s deportation aligns with her pleaded case. She filed a confirmatory affidavit with five paragraphs. After making the usual introductory statements, she recorded the following facts:

‘4.        I further confirm that, I am in a permanent partnership with V[...] K[...] and together we have two children.

5.         I further confirm that I support this application for him to reside in the republic for the benefit of our children.’ (my emphasis)

43.         Accordingly, there is nothing in the Second Applicant’s affidavit indicating that, in accordance with s 11(4) (see quote above in footnote 6), she consented to the amendment of PKM and VKM’s birth certificates to include the First Applicant’s particulars as father. Therefore, I am satisfied that s 11(5) of the BADRA applies to this application (and not s 11(4)).

THIRD ISSUE: IS FIRST APPLICANT ENTITLED TO RELIEF IN SECTION 11(5)?

44.         There is a dearth of case law on s 11(5). Therefore, it is incumbent on me to discuss its provisions to determine if its requirements are met.

45.         Section 11(5) of the BADRA reads:

‘Where the mother of a child has not given her consent to the amendment of the registration of the birth of her child in terms of subsection (4), the father of such a child shall apply to the High Court of competent jurisdiction for a declaratory order which confirms his or her paternity of the child and dispenses with the requirement of consent of the mother contemplated in subsection (4).’[9]

46.         Textually, s 11(5) records that declaratory relief thereunder entails two orders: (i) an order confirming paternity of a child; and (ii) an order dispensing with a mother’s consent for amending her child’s birth certificate by the inclusion of the father’s prescribed particulars. Each will now be discussed in turn.

Dispensing with the Second Applicant’s consent

47.         A birth certificate is no ordinary document. It is a vital instrument for families universally: viewed narrowly, it gives recognition to a legal fact, namely, that the law recognises a parent-child relationship. In South Africa, this recognition underpins a range of benefits operating by law (such as, the right of a child to inherit intestate from a parent; and the right to parental care). Viewed more broadly, a birth certificate aids in acknowledging family ties between the child to whom the certificate relates and his/her extended family (ie, grandparents, uncles, aunts, and cousins), including ancestral family, a key feature in some cultures and traditions in South Africa (and elsewhere in Africa and the globe).

48.         All this aligns with the indisputable fact that the birth of a child bonds him/her not only to his/her parents but to the mother and father’s families too. For this reason, children’s rights extend past mere parental responsibilities. The ‘best interests of a child’ standard includes the right of a child to, inter alia, have contact with his/her paternal and maternal family (such as, with grandparents). See YCM v NDM (CA04/2024) [2024] ZAECMKHC 144 (10 December 2024). In this way, our law gives practical meaning and expression to the notion and spirit underpinning the age-old proverb that ‘it takes a village to raise a child’.

49.         When dealing with an application under the aegis of s 11(5), cognisance must be taken of its application in the context of an institution in the DNA of our society, namely, a family, howsoever constituted and structured. That s 11(5) must be interpreted for its application to families in a regional and global context, rather than a narrow South African context only, is clear from s 2 of the BADRA. Its provisions give this statute a very wide berth. Section 2 reads: 

‘The provisions of this Act shall apply to all South African citizens, whether in the Republic or outside the Republic, including persons who are not South African citizens but who sojourn permanently or temporarily in the Republic, for whatever purpose.’

50.         Whatever their character, family units are vital in the fabric of our society. When applying s 11(5), family ties must be promoted and protected, including by state actors. See Dawood and another v Minister of Home Affairs and others; Shalabi and another v Minister of Home Affairs and others; Thomas and another v Minister of Home Affairs and others [2000] ZACC 8; 2000 (3) SA 936 (CC) paras 30 - 31. In the present case, registration of the First Applicant as father of PKM and VKM acknowledges family ties between them and recognises the children’s heritage as members of the ‘K[...]’ family of Zambia. All this militates in favour of dispensing with the Second Applicant’s consent for purposes of s 11(5).  

51.         When adjudicating whether to dispense with the birth mother’s consent, I took into account that registering the father’s name on the children’s birth register (in addition to that of their mother) is, on the one hand, consistent with the best interests of the children involved and, on the other, promotes respect for, and protection of, the children’s dignity. These are entrenched fundamental rights.

52.         Registration of fatherhood serves a child’s best interest - it fosters family affiliation by reason that the child no longer sees him/herself as the child only of the mother but of both parents: ‘Children may see themselves as being of an inferior status as they do not have a proper family, and this can cause stresses such as social isolation and social stigma.’ (Centre for Child Law supra para 80)

53.         The non-registration, or point-blank refusal to register, a father’s details on a child’s birth certificate infringes the father and the affected child’s dignity in a most fundamental way. Registration of fatherhood is part of a father and his child’s identity – it is integral to their respective sense of self and belonging which is, in turn, an important component of their sense of self-worth and value.  

54.         Compliant with the imperative in s 39(2) of the Constitution of promoting value-based interpretation, the construction of s 11(5) adopted in this judgment promotes the constitutional rights of fathers and of their child(ren) born outside of marital bonds. They are vulnerable groups of persons. Moreover, it promotes constitutional norms by advancing respect for, and protection of, the family, including cultural, linguistic, and religious values of an identified family. This accords with this Court’s duty to ‘promote the spirit, purport and objects of the Bill of Rights’ (s 39(2)).

55.         Although s 11(5) provides for dispensing with a mother’s consent, this does not mean that the mother is overlooked in the process. Her posture to the father’s application is vital. Applications of this nature involve more than simply a father’s right to be acknowledged in the eyes of the law as a child’s father.

56.         The mother’s voice falls under the rubric of the ‘best interests of a child’ protected in s 28(2) of the Constitution.[10] This statutory cum constitutional standard is paramount in any matter concerning a child (such as, applications to register a father’s name on a child’s birth certificate through amendment).

57.         In this context, the following dicta in Centre for Child Law supra is instructive:

‘141.   It cannot be seriously disputed that it is in the best interests of a child to be practically and more meaningfully linked to a loving, caring, supportive and responsible father, not just any man who happens to have fathered him or her.  All things considered, the mother of that child is best-suited to tell whether the unmarried man claiming to be the father is in fact the father and a responsible one. …

142.    … A child’s mother must therefore necessarily be asked to say: (i) whether the man claiming to be the father is indeed the father; and (ii) even if he is, whether he is the kind that would help advance the best interests of the child and give expression to the paramountcy of those interests or one whose somewhat formalised association with the child would be prejudicial to the child’s best interests.’

58.         While the Second Applicant has not said that she consents to the amendment of PKM and VKM’s birth certificates, she has not objected to it either. This is a relevant factor favouring dispensing with her consent. Moreover, the First Applicant is involved in the children’s daily life, and in Second Applicant’s too. It is common cause that they cohabit as husband and wife. They reside together in a dwelling at Langa and are co-parents of PKM, VKM, and UM, each having parental rights and duties. Clearly, they are a family and they live as a family.  

59.         All these objective facts favour the dispensing of Second Applicant’s consent envisaged by s 11(5) of the BADRA. An order to this effect will be granted.

Confirmation of First Applicant’s paternity of PKM and VKM

60.         In any application rooted in s 11(5), an applicant bears the onus to prove his alleged fatherhood and, therefore, entitlement to the declaratory relief. To grant final declaratory relief under s 11(5), the rule of evidence in Plascon-Evans applies, rather than the rule in Webster v Mitchell for interim relief.[11]

61.         It is common cause that First Applicant is the biological father of PKM and VKM. Since the presumption flowing from s 36 of the Children’s Act has not been rebutted, First Applicant is entitled to judicial confirmation under s 11(5) that he is the father of PKM and VKM. An order to this effect will be granted.

FOURTH ISSUE: IS DNA TESTING MANDATORY WHEN SECTION 11(5) APPLY?

62.         The main bone of contention dividing the parties concerns DNA testing. Respondents’ Counsel argued that regardless of whether an amendment falls within the realm of s 11(4) or s 11(5) of the BADRA, the legal position is the same: by operation of law, proof of paternity through DNA testing is mandatory. This submission crystallises the next question for adjudication: is proof of paternity by scientific DNA testing required even after a high court confirms paternity under s 11(5)? This question of law is untested terrain.

63.         The Respondents’ answer is ‘yes’; First Applicant’s answer is ‘no’. These parties were unable to provide case law directly on point to support their respective contentions. My survey of case law also uncovered none.

64.         It will be recalled that it is common cause that the First Applicant is poor and cannot afford DNA testing. He argues that any requirement of DNA paternity testing being a pre-condition for amending PKM and VKM’s birth certificates, despite a court order confirming paternity, imposes undue financial hardship which would disproportionately affect him and other poor (mainly Black) parents than it would affect affluent parents (ie, those with means). This argument, in my view, has merit. I did not understand Respondents’ Counsel to dispute it.

65.         Respondents’ Counsel conceded that DNA tests are, relatively speaking, expensive and unaffordable to poor persons (such as, to First Applicant). In my view, it is probably for this reason that the legislature, being mindful of the high levels of indigence in our country, took a policy decision not to require DNA testing as a standard requirement to prove paternity before a person is registered as a child’s biological father under s 9 and s 10 of the BADRA.

66.         Despite this, Respondents contend their hands are tied – they interpret the law as ordaining DNA testing for purposes of s 11(5) even if a high court confirms paternity. For the ensuing reasons, I find that this approach is inconsistent with true position emerging from a proper interpretation of the statutory provisions.

67.         As a point of departure, interpreting a statute involves an analysis of the relevant law-text, having regard to its broader internal and external contextual scene, and its purpose. Equally important, statutes are to be interpreted consistently with the Constitution and through the prism of its values. See Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC) para 28.

68.         The highwater mark of the case advanced by the Respondents in favour of mandatory DNA testing for proof of paternity is two-fold: first, they argue it is necessary as a security measure for immigration administration under the Immigration Act; secondly, they contend that it is needed to protect the integrity of the national population register. In my view, neither argument holds water.

69.         The first argument mentioned in paragraph 68 is predicated on the contents of the following extracts appearing in the Respondents’ answering affidavit:

‘31.      … There have been cases where single mothers get involved in relationships with non-South African men and approach the Second Respondent to record these persons as fathers of their children even if they are not the biological fathers. This is then used to motivate for permanent residence permits due to the right that children have to be cared for by both their parents.

32.       To this end, DNA testing is the only reliable method of ascertaining the paternity of the child. To do away with this requirement would pose a serious security risk of fraud and manipulation. Second Respondent would be left with no recourse as the rights of children are of paramount importance.’

70.         At the hearing, Respondents’ Counsel was at pains to point out that this extract is not intended to suggest that applicants are engaged in the unsavoury practice alluded to in the quote. For purposes of this case, the Respondents accept that the First Applicant genuinely, and with good reason, believes himself to be PKM and VKM’s biological father. Second Applicant admits that he is their father.

71.         As regards the extracts quoted above in paragraph 69, the Respondents are here seeking to use DNA testing in the realm of s 11(5) to advance purposes related to immigration regulation. However, those objectives have nothing to do with the aims of the BADRA itself, nor with s 11(5) or s 11 read holistically.

72.         To this end, it is an established rule that ‘there is no principle of interpretation that requires a court without more to interpret one piece of legislation with reference to another’ (Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and others 2020 (2) SA 325 (CC) para 14). Admittedly, ‘it may at times be appropriate to consider how another statute deals with a similar issue’ (my emphasis), but even then, ‘the latter statute cannot be any more than an interpretive aid.’ (Independent Institute of Education supra para 15)  

73.         The subject matter dealt with in s 11 of the BADRA and this statute read as a whole are unrelated to the subject matter of the Immigration Act. The long title of the BADRA records its overall purpose to be: ‘To regulate the registration of births and deaths; and to provide for matters connected therewith.’

74.         Moreover, ss 11(4) and (5) of the BADRA were introduced through an amendment effected by s 8 of the Adoption Matters Amendment Act 56 of 1998. These amendments have nothing to do with immigration. Their purpose is recorded in the long title of the Amendment Act as follows: ‘and to amend the Births and Deaths Registration Act, 1992, so as to afford a father of a child born out of wedlock the opportunity to record his acknowledgement of paternity and his particulars in the birth registration of the child’.

75.         Since the BADRA and the Immigration Act serve different objects, a purposive reading of s 11(5) makes it inappropriate for the Respondents to justify DNA testing in its context with reference to improved immigration regulation under the Immigration Act. This is incongruent with a purposive mode of interpretation.

76.         As for the second argument advanced by the Respondents (see above in paragraph 68), I find that it is misconceived for two reasons.

77.         First, a grammatical reading of the relevant statutory provisions does not support the Respondents’ contention. The wording used in s 11(4A), and regs 14(1) and (2) related thereto, indicate that their provisions do not apply to situations envisaged by s 11(5): whereas s 11(4A) applies when an amendment to a child’s birth certificate is sought with a mother’s consent, s 11(5) applies when no consent is given by the child’s mother.

78.         Secondly, for purposes of s 9(1) and s 10 of the BADRA dealing with the initial birth registration within 30 days after date of birth (see above in footnotes 1 and 2), proof of paternity through DNA testing is, by operation of law, not required.

79.         For purposes of s 9 and s 10, consensus between the parents as to the identity of the father is the standard required by law. If there is consensus with a child’s mother as to the person with whom she had sexual intercourse and conceived the child, then the agreed father’s particulars are inserted on the child’s birth certificate, subject only to the father providing relevant documentation to prove his personal particulars (for eg, by way of a passport or identity document).

80.         This is the legal position which applies to the initial registration of all births, irrespective whether the child is one born in or outside of marital bonds, and regardless of whether the father is a South African citizen or foreign national.

81.         Therefore, the Respondents’ contention that DNA paternity testing serves to protect the integrity of the population register lacks merit. If scientific DNA testing was vital for this purpose, then it can reasonably be expected that the legislature would have made it compulsory for all birth registrations, regardless of the high levels of indigence in South Africa (see above in paragraph 65). That the legislature does not require DNA testing as a stock standard requirement for all births, speaks volumes about the fact that the absence of DNA testing is not viewed by the legislature as undermining the population register’s integrity.

82.         Respondents’ argument also loses sight of a key fact: the population register’s integrity is protected by the fatherhood of a child being confirmed by the upper guardian of a child, being a high court after it evaluates all admissible evidence. In some instances (such as, where paternity is disputed, and/or the presumption in s 36 of the Children’s Act does not apply), DNA testing would probably be required to sustain a finding that an applicant discharged the onus of proving his paternity of a child whose birth certificate he seeks to amend by the inclusion of his details as father. That is a factual enquiry in each instance. The present matter is not such a case: here paternity is undisputed by the disputants. 

83.         Section 11(5) makes no provision for the ‘conclusive proof’ mentioned in s 11(4A) (ie, DNA testing dealt with in reg 14). An interpretation to the effect that a DNA test is necessary to prove paternity even after a high court confirms paternity is a construction which would have to be winkled out of contextual crevices. In an era of justification, I find such an interpretation to be unjustifiable.

84.         Moreover, requiring a DNA paternity test after paternity has been confirmed by a high court is an absurd result which the legislature could not have contemplated when it enacted s 11(5) in its current form. See JR de Ville Constitutional & Statutory Interpretation (2000) at 203 - 204. What possible purpose would a DNA paternity test serve in such a situation? On this basis too, the interpretation of s 11(5) contended for by the Respondents is unjustifiable.

85.         To recapitulate: This judgement must not be misunderstood – it does not do away with DNA testing as a scientific method to prove fatherhood of a child born outside of marital bonds. This judgment affirms that, for a birth certificate amendment under s 11(4) of the BADRA, s 11(4A) ordains mandatory DNA testing. This judgment holds further that there may be instances where, in an application for relief under s 11(5), a DNA paternity test would be necessary as part of the overall mosaic of evidence needed to prove fatherhood. Each case must be decided on its own merits. The kernel of this judgment on DNA testing is that once a high court performs its adjudicative role under s 11(5) and confirms paternity, then, by virtue of the rule of law, its order obliges officials at the Department of Home Affairs to amend the relevant child’s birth certificate to include his/her father’s details without any further proof of paternity. The high court’s declaratory order under s 11(5) stands as conclusive proof of paternity.

FIFTH ISSUE: IS THE FIRST APPLICANT ENTITLED TO AN EXEMPTION ORDER UNDER SECTION 7(2)(c) OF THE PAJA?

86.         In this regard, the salient common cause facts are the following: on 25 July 2024, Second Respondent declined to issue a permanent residence permit (PRP) to First Applicant who then sought to appeal the adverse administrative decision. He paid the prescribed fee. However, the earliest appointment with Third Respondent to lodge the internal appeal was 29 November 2024, which fell outside the 10-day appeal lodgement period. First Applicant then sought permission to backdate his appointment so that it fits into the 10-day statutory scheme. This request was refused. First Applicant then lodged his appeal. It was rejected on the grounds that the appeal was filed late.

87.         First Applicant now seeks an order under s 7(2)(c) of the PAJA which would exempt him from first exhausting all internal appeal remedies with the Respondents as required by s 7(2)(a), and for this Court to then adjudicate his review application for the setting aside of the refusal to grant him a PRP.

88.         Respondents contend that this application is meritless. They contend that First Applicant failed to show the existence of exceptional circumstances. Thus, it is not in the interests of justice that he be granted an exemption under s 7(2)(c).

89.         Section 7(2)(c) of the PAJA received attention recently in CSARS and another v Richard’s Bay Coal Terminal (Pty) Ltd (CCT 104/23) [2025] ZACC 3 (31 March 2025). The apex court affirmed its approach in Koyabe v Minister for Home Affairs (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC) para 36, a case relied on by First Applicant in support of his case for exemption.

90.         I find that the facts relied on by First Applicant do not qualify as out of the ordinary (‘exceptional circumstances’) to warrant the exemption order sought. Moreover, none of the circumstances relied on by him existed before, or at least when, the review application was filed. In these circumstances, the interests of justice do not favour granting the exemption order. See NR and others v Director General: Home Affairs and another (21762/2024) [2025] ZAWCHC 189 (5 May 2025) para 34. On this basis, the exemption application fails.

91.         As a result, it is unnecessary to consider the review application filed of record.

DISCHARGE OF THE INTERIM INTERDICT, OR NOT?

92.         On 30 October 2024, an interdict was granted per Goliath AJP by agreement between the parties. The terms of the interdict were as follows:

‘6.        The First and Second Respondents are hereby interdicted and restrained from initiating any process or taking any action to deport or otherwise declare the First Applicant as an undesirable person within the Republic of South Africa, pending the finalisation of this application.’  

93.         At the hearing, the applicants urged me not to allow steps to be taken to deport First Applicant to Zambia while his application for a PRP is not finalised. Second Applicant, in particular, argued that deportation would be against the best interests of PKM and VKM – the First Applicant supports them financially and he has a close bond with his sons which will be broken if deportation occurs.

94.         Although I have not found in his favour on the immigration issue, the declaratory relief under s 11(5) entitles First Applicant, for the first time, to have his particulars registered on PKM and VKM’s birth certificate. As such, he is also now entitled to apply for the right to reside in South Africa based on his recognised paternity. See Dawood v Minister of Home Affairs supra.

95.         At the hearing, First Applicant informed me that he intends to apply for a PRP on the basis of his paternity of PKM and VKM if I grant him the necessary relief under the BADRA. If the interim interdict is not extended, then it will result in First Applicant being deported and his victory here would be hollow and his sons would be considerably worse off financially than they already are at present. 

96.         Taking all this into account, I find that, in the interests of justice, an extension of the interim interdict ought to be granted for 12 months. An order to this effect will be granted on the basis that First Applicant takes the necessary steps to apply for his PRP within a defined period. It goes without saying that the First Applicant ought to be entitled to apply to this Court for the further extension of the interim interdict on good cause shown at the relevant time, if needs be.

COSTS

97.         The issue of costs was debated at the hearing. First and Second Applicants seek an award of costs against the Respondents, and vice versa.

98.         It is long established in our law that costs is a matter within a court’s wide discretion. That discretion must be exercised judiciously having due regard for accepted legal principles. See Kruger Bros and Wasserman v Ruskin 1918 AD 63 at 69. In the present-day context of high court litigation, the sample list of relevant factors enumerated in Uniform Rule 67A(2) is a useful starting point. Another relevant factor is that costs usually follow on success. In this case, the protagonists have all enjoyed some measure of success.

99.         I am disinclined to grant costs against the applicants. They pursued this application to enforce constitutional rights (including, the rights to dignity and to just administrative action). They acted not only for their own benefit but for the benefit of their sons (ie, PKM and VKM) and, to some extent, for the benefit generally of fathers and their children born out of marital bonds. It is an established principle that courts ought to be slow to grant costs against litigants enforcing constitutional rights. See Sanderson v Attorney-General, Eastern Cape 1997 (12) BCLR 1675 (CC) paras 43 - 44.

100.      As litigants without legal representation, the applicants are not entitled to costs, save for necessary disbursements if I consider that the circumstances here merits such an award. I do. See Milnerton Riding Club NO v Milnerton Riding School (Pty) Ltd and others [2022] ZAWCHC 238 para 13.

101.      In reaching my decision, I considered the contents of the court file, including all prior court appearances and the reasons for postponements and delays in the finalisation of this matter. I also considered the complexity of the matter, and the conduct of the parties on both sides. Despite their meagre finances, I am particularly struck by the extent to which the applicants have gone to ensure that this matter was ready for hearing and that the court file was in order.  

102.      Even though they are not lawyers and have no legal training, their compliance with this Court’s orders, rules, and practice directives has not gone unnoticed. They indexed and paginated the court file at my chambers; filed practice notes; bound the court papers neatly in a lever arch file with each court application separated by dividers which they provided at their expense; and delivered detailed heads of argument, including a post-hearing note at my request.

103.      During my engagement with the First Applicant at the hearing,[12] he explained that he studied the court rules and practice directives because he considers it a sign of respect to this Court and its processes for the applicants to comply therewith as lawyers would in the course of presenting their cases before this Court. It became evident to me that his respect for this Court was part of his motivation for taking issue with the Respondents’ non-compliance with this Court’s order that formed the subject of their condonation application.

104.      Consequently, I award the applicants costs but only to the extent of their disbursements incurred in this application as a whole (ie, in Part A and Part B).

ORDER OF COURT

105.      In the result, I grant the various orders outlined earlier under the heading ‘Order of Court’. 

FAREED MOOSA

ACTING JUDGE OF THE HIGH COURT

Appearances