Chief Justice Mogoeng: 'Corruption in SA respects no territory'

"It can't be denied that corruption is rampant in South Africa. Whether it relates to [a] tender, whether it relates to child registration, it respects no territory."

This is according to Chief Justice Mogoeng Mogoeng during a virtual hearing on Tuesday morning.

The Constitutional Court heard arguments from both the Centre for Child Law (CCL) and the director-general of home affairs.

The Centre wanted the apex court to confirm a finding of the Eastern Cape High Court in Grahamstown that Section 10 of the Births and Deaths Registration Act is unconstitutional because "it creates insurmountable barriers to the birth registration of children of unmarried fathers".

It ruled that the births of all children born in the country can be registered, regardless of the marital status of their parents.

The case comes after a South African man and a woman from the Democratic Republic of Congo (DRC) sought to register the birth of their daughter, who was born in Grahamstown.

The woman travelled to and from South Africa on her Congolese passport and visitor's visa, before her daughter's birth.

However, shortly before the birth, the woman's visa expired.

She could not renew her visa or travel back to the DRC, due to her pregnancy.

The home affairs department refused to register the child's birth on the basis that the mother never had a visa or permit.

The couple then brought an application to the high court to review and set aside the decision that refused to register their daughter's birth.

Following the high court's ruling, the CCL was granted leave to join the proceedings as the third respondent.

The CCL then appealed the matter on the question of the constitutional validity of Section 10, according to the court papers.

During the appeal, a full bench declared Section 10 invalid and inconsistent with the Constitution.

The declaration was suspended for 24 months to allow Parliament to cure the defects.

During Tuesday's court proceedings, human rights lawyer, advocate Jatheen Bhima, for the CCL, said the matter was best left to Parliament to call for comments on the proposed bill and allow the people who had the data and actual facts to play a part in the process, so that it could be legislated.

However, Mogoeng raised some concerns.

He said he was worried about the danger of a person giving notice of a child's birth without supporting their claim.

"What happens in the two years, which may even be extended (by Parliament)?" Mogoeng asked.

"What happens in the two years if there are possible loopholes? And we don't seek to understand what safeguards exist in the interim. A lot of damage can happen during this period, if we just say, well, Parliament can fix it. What happens in the interim?"

Bhima responded and said: "I think there are two things we need to be cognisant of. That the children's court should be empowered to provide paternity orders that may be a solution to the interim issue. Have the birth notified and, if there is a suspicion, then home affairs can require a paternity order."

But, again, Mogoeng said it was not a question of discriminating between those who were married and those who weren't.

"It is not just wild discrimination. We want to make sure that the one claiming to be the father is the father, otherwise we will easily get children with fathers and leave the country with them, and do whatever they want to do with them."

Mogoeng said what a father needed was a basic way of satisfying home affairs that they were indeed the father – whether through DNA, grandparents, relatives or the mother's friends.

He also said his comments were more about ensuring that people don't just "pop up and have an easy adoption".

"My worry is this, Mr Bhima: It can't be denied that corruption is rampant in South Africa. Whether it relates to [a] tender, whether it relates to child registration, it respects no territory, and that is where I am coming from," Mogoeng said.

"Fraud and corruption are a serious problem and the likelihood is, it may permeate even the child registration situation. Therefore, we need to be vigilant as we make orders.

"Not to make orders that can play right into the hands of corrupt characters out there… we've got to be vigilant and make sure that basic information is at least in place to give us that comfort that we are not giving away, or home affairs is not left to give away people's children as a result of lack of vigilance."

Meanwhile, advocate Ismail Jamie, for the director-general of home affairs, suggested to the apex court judges that Section 10 should be deleted.

He said if the section was deleted, children born within wedlock and out of wedlock would be catered for, adding the court's anxiety and concerns would be dealt with in terms of the regulations and Section 7.

"Section 10, it does no justifiable good and it does no justifiable work, other than differentiating, improperly, we submit, between married and unmarried parents… our principle submission, justices, would be Section 10 be struck out on its entirety…"

Judgment was reserved.

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