The Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Another

The applicants, a non-profit organisation and the Catholic Archdiocese of Durban, challenged provisions of the Births and Deaths Registration Act 51 of 1992 (BADRA) and related regulations. They contended that sections 18(1)–(3) and 20(1) of BADRA, read with the definition of “still-birth”, and regulation 1 of the Regulations Relating to the Management of Human Remains, were unconstitutional insofar as they were understood to prohibit the burial of foetal remains following pregnancy loss other than still-birth (i.e. miscarriage or termination before 26 weeks). The High Court agreed and declared the provisions unconstitutional. The matter came before the Constitutional Court for confirmation of that order.

The Constitutional Court refused to confirm the High Court’s order of constitutional invalidity. The High Court’s orders were set aside and replaced with an order dismissing the application, with each party to pay its own costs. The cross-appeal fell away and related procedural applications were dismissed.

The case clarifies the scope and interpretation of the Births and Deaths Registration Act, confirming that it does not regulate or prohibit the burial of pre-viable foetal remains. It underscores the principle that constitutional invalidity cannot be declared on the basis of a mistaken interpretation of legislation and reinforces the duty to interpret statutes in a manner consistent with the Bill of Rights before engaging in constitutional review.