VICTOR AJ
The Act and its Regulations make no provision for the scenario where one of the parents
is a South African citizen and the other parent is a foreign national who does not have
a valid passport or visa.
[6]
This case requires a careful analysis of the impact of the interplay between
sections 9 and 10 of the Act in order to determine whether the sections further the
constitutional goal of equality and dignity for unmarried parents and their biological
children.
[7]
These are confirmation proceedings in terms of sections 172(2)(d) and 167(5) of
the Constitution for confirmation of the unanimous order granted by the Full Court.
Accordingly, this Court’s supervisory jurisdiction is automatically engaged.
Background
[8]
The third respondent, Mr Menzile Lawrence Naki (Mr Naki), and the fourth
respondent, Ms Dimitrila Marie Ndovya (Ms Ndovya), met around 2008 in the
Democratic Republic of Congo (DRC) whilst Mr Naki, a South African citizen and
member of the South African Defence Force, was stationed in the DRC for a
peace-keeping mission. They married in the DRC in accordance with the culture and
customs of Ms Ndovya, a citizen of the DRC. This marriage was not registered because
customary marriages are not registered in the DRC. Two children were born from their
marriage, one of whom is their daughter, NN, born in Grahamstown on
1 February 2016. Before NN’s birth, Ms Ndovya travelled to and from South Africa on
a visitor’s visa.
Shortly before NN’s birth, Ms Ndovya’s visa expired while in
given for each child separately on Form DHA-24 illustrated in Annexure 1A
with all the supporting documents contemplated in sub-regulation (3) and the
exact time of each birth must be recorded in that Form.
(5)
Upon approval of a notice of birth, the Director-General must issue to the
parents a birth certificate without an identity number on Form DHA-19
illustrated in Annexure 24, in terms of section 5(3) of the Act.”
6