The applicant was in an unregistered customary law union with a man who died on 10 June 2010. They had a minor child, Talent N. Jangara, born on 2 April 2010. Prior to his death, the husband had assaulted the applicant causing injuries requiring medical treatment in South Africa. After giving birth, the applicant needed to travel to South Africa with her baby and sought to procure a birth certificate in the child's father's family name. The Registrar of Births and Deaths refused to issue the birth certificate without the participation of the deceased father's relatives as required by s 12(2)(c) of the Births and Deaths Registration Act. The deceased's relatives were unwilling to assist. The applicant approached the court seeking an order compelling the Registrar to issue the birth certificate and declaring s 12(2)(c) unconstitutional.
The application was dismissed with no order as to costs.
Section 12(2)(c) of the Births and Deaths Registration Act requiring joint request from a child's mother and a parent or near relative of the deceased alleged father before entering the father's name in the register is constitutional and not ultra vires the Constitution. The provision serves the legitimate purpose of safeguarding family identity and preventing fraudulent paternity claims. A family name carries unique identity linking one to ancestry, blood ties and common origin, which has cultural, economic and social significance warranting protection. The requirement does not constitute unfair discrimination against women or children born out of wedlock. Even if the provision limits the child's right to a family name or prompt provision of a birth certificate under s 81 of the Constitution, such limitation is fair, reasonable and justifiable in a democratic society under s 86 of the Constitution. The requirement represents a minimal, non-cumbersome process that is less onerous than scientific paternity testing. Alternative remedies exist including court orders to compel relatives to cooperate, DNA testing, or obtaining a birth certificate in the mother's name with subsequent endorsement of the father's name upon proof of paternity. As a matter of judicial policy, constitutional issues should only be considered when necessary, and where civil law remedies are available, those should be pursued first.
The court expressed strong displeasure that the matter took over 5 years to be set down for hearing, stating it was not treated with the urgency it deserved given that a minor child's interests were at stake. The court noted that by the time of hearing, the child was over 5 years old and still without a birth certificate, which was "highly displeasing." The court also criticized the Civil Division's submissions as "very disappointing and deficient for such an important matter," stating that lawyers representing government departments must move away from merely putting in an appearance and should present well-researched and comprehensive arguments. The court emphasized that representation should be done "wholeheartedly, diligently and brilliantly" as courts rely on persuasion grounded in law to reach informed decisions. The court observed that under common law, the mother is the guardian of a child born out of wedlock, and any rights accorded to the father under s 3(5) of the Customary Law Marriages Act are operative at customary law only and do not take away the mother's common law rights.
This case is significant in Zimbabwean constitutional law as it establishes that administrative requirements for birth registration, even where they may appear to limit constitutional rights, will be upheld where they serve legitimate purposes and are reasonable. The judgment reinforces the importance of protecting family identity and preventing fraudulent paternity claims while balancing children's rights to birth certificates and family names. It demonstrates the court's approach to constitutional challenges, confirming that constitutional issues should only be decided when necessary and that alternative civil remedies should be pursued first. The case clarifies the interaction between statutory provisions governing birth registration and constitutional rights, particularly for children born out of wedlock in unregistered customary law unions. It also emphasizes the judicial principle that courts should avoid deciding constitutional issues when cases can be resolved through ordinary civil law remedies.