Ungubani: The non-consensual surname change of a minor child

October 1st, 2018

NAV v MVM and The Minister of Home Affairs (GP) (unreported case no 15664/2017, 16-2-2018) (Thobane AJ)

By Khomotso Maja and Vilimile Gumede 

The question ungubani? features in one of the latest Marvel films. It is an old question, which derives its roots from the Nguni language and translates to ‘who are you?’ For many cultures around the world, the naming of a child is a sacred rite, as it is one of the first exercises undertaken by those who presuppose the child’s existence to ascribe identity to the child. This notion seems absurd and yet it was the perception of one of the parties in the case of NAV v MVM and The Minister of Home Affairs (GP) (unreported case no 15664/2017, 16-2-2018) (Thobane AJ).

The position of fathers of children born out of wedlock has evolved since the Births and Deaths Registration Act 51 of 1992 (the Act) came into effect. It is interesting to note that according to the Recorded live births, 2016 Report, which was released by Statistics South Africa, no comparable or reliable information on fathers could be provided due to a high proportion of births registered (more than 60%) without details of fathers (www.statssa.gov.za, accessed 1-9-2018).

The Act makes provision for instances where the parent of a minor child intends to alter the surname of the child. The type of scenario discussed in this article, however, is one where the father of a child born out of wedlock approached the court for an order setting aside the change of the minor child’s surname, which was done without his consent.

In the above-mentioned case, the minor child was born to the parties at a time when they enjoyed cordial relations and were intent on getting married. Prior to that, lobola negotiations had commenced, resulting in the conclusion of a lobola pact, which incorporated a portion of payment of damages for the unborn child.

The parties agreed that the child’s name would be registered with the surname of the applicant (the father) and this was done. Not long after the partial payment of lobola, the parties’ relationship came to an end, yet they remained in contact for the sake of the child after the birth.

At some point during the child’s early, minor years, the first respondent (the mother) succeeded in changing the child’s surname to her own without the consent of the father. Soon after the father became aware of the non-consensual change, he and the mother approached a social worker to assist them in the conclusion of a parenting plan, wherein it was concluded, inter alia, that the child’s name would contain a double-barrel surname, which incorporated the surnames of both parents. The validity of the parenting plan was disputed by the mother, however, the court was of the view that it did not have to pronounce on the status of the parenting plan.

The court stated that the crisp issue for determination was whether or not it could direct the Minister of Home Affairs to restore the surname of the child from that of the mother to that of the father. In considering the matter, the court had regard to s 25 of the Act and ss 18 to 22 of the Children’s Act 38 of 2005, as well as High Court and Supreme Court of Appeal case law.

Thobane AJ, in his judgment stated at para 20 that: ‘The question of whether the natural father who is neither married to the natural mother of the minor child nor in a permanent life relationship with her is answered by considering the provisions of section 21(1) of the Children’s Act. The question therefore is whether the applicant had full parental rights and responsibilities in respect of the minor child as envisaged by section 18(2)(c), prior to the change of surname.’

The court set out the qualities and requirements expected from the father of the minor child in terms of s 21(1)(b) as follows –

‘(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;

(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.’

The court further held at para 23 that: ‘When the requirements are looked at individually, the picture, set out below, emerges. Firstly, the applicant undoubtedly aligned or identified himself as the father of the minor child. In addition, [the] applicant paid over, to the defendant’s family, in accordance with customary law, a portion of lobola. Undoubtedly, the requirement set out in section 21(1)(b)(i) has been met. The contention by the first respondent that the applicant did not consent to be identified as the father of the child is not supported by objective facts, even on the version of the first respondent. Secondly, the applicant and the first respondent put together a parenting plan. On the version of the first respondent the applicant became involved in the upbringing of the minor child after the parenting plan was obtained. While it is not clear when the parenting plan was obtained, it seems undisputed that it is in place. The provision of section 21(1)(b)(ii) require of the father to be involved in the upbringing of the child. [There] can be no better indication that the applicant is involved in the upbringing of the minor child than the fact that there is a parenting plan in place. Lastly, it is required of the applicant to show that he contributes or has attempted to contribute towards expenses in relation to the minor child. It is my view that even though the applicant is said to be in arrears with payment of maintenance for the minor child that is not the only measure to weigh the question of maintenance. … I am satisfied that the applicant meets the requirements of section 21(1)(b)(ii).’

The court, therefore, concluded that the father had indeed acquired full parental responsibility as envisaged in s 18(2)(c) and that the mother was, therefore, obliged to consult the father before changing the minor child’s surname. The court also commented that parties should not use the minor child as a tool to fight issues of their broken-down relationship. It was ordered that the mother’s non-consensual change of the minor child’s surname be set aside; that the Minister of Home Affairs restore the minor child’s surname to that of the father and that the mother pay the costs.

Khomotso Maja NDip Legal Assistance (TUT) is a paralegal and Vilimile
Gumede BA Law (UP) is a candidate attorney at Snail Attorneys @ Law Inc in Pretoria.

The authors were directly involved with the litigation of this matter for the applicant.

This article was first published in De Rebus in 2018 (Oct) DR 46.