- The Western Cape High Court found that Home Affairs broke the law by refusing late birth registrations for two applicants, including a 17-year-old who was left without a legal identity.
- Judge F Moosa said the department’s conduct breached a previous court order but did not meet the threshold for contempt, as wilful intent was not proven.
- The judgment confirms that declaratory court orders are binding and must be obeyed, protecting the rights and dignity of undocumented South Africans.
The Western Cape High Court has shone a spotlight on the personal cost of bureaucratic gatekeeping. The judgment focuses on the experience of a 17-year-old South African left invisible before the State, and Thamisanqa Molepo, both of whom were denied their right to exist on paper by Home Affairs officials in Cape Town.
The court found that Home Affairs broke the law by refusing to accept late birth registration applications, even after a previous order had declared this practice unlawful. Although the department escaped a contempt of court ruling, Acting Judge F Moosa made it clear that court orders, whether declaratory or not, cannot be ignored.
The case was brought by De Saude Sadat Darbandi Immigration Attorneys Inc after officials again turned away applicants whose births had never been registered. The refusals continued despite an earlier court order by Judge C Nziweni, which found such conduct unlawful.
Judge Nziweni declared that the conduct of officials acting in the course and scope of their employment, who, without proper authority, refused to accept or process applications under the South African Citizenship Act and the Births and Deaths Registration Act at Home Affairs offices, was unlawful and beyond their legal powers.
De Saude Sadat Darbandi Immigration Attorneys Inc then applied to the Western Cape High Court to have the Department of Home Affairs declared in contempt of court for refusing to accept late birth registration applications, despite the court order by Judge Nziweni requiring officials to stop that conduct.
The Department was directed to accept the applications of the affected clients at its Cape Town offices and to ensure that these were sent to the appropriate adjudicators for processing. The respondents were also ordered to pay the legal costs of that application, jointly and severally.
The impact on young lives
For the 17-year-old applicant, the consequences of this refusal have been profound. As quoted by the court, “He has no birth certificate, no ID number, no passport, and no nationality. He cannot write matric, register for a tertiary institution, obtain a driver’s licence, open a bank account, or even legally exist in the eyes of the State.” Judge Moosa described this as unacceptable in our open and democratic society based on the trinity of human dignity, equality, and freedom.
Molepo faced the same rejection and was told he needed an appointment, a requirement the court found had no legal foundation. Only after legal intervention were the applications finally accepted.
Judge Moosa emphasised that the case was not simply about the eventual acceptance of documents. The real issue was the need for accountability for past unlawful conduct and whether a declaratory order can be enforced through contempt proceedings. The court confirmed that declaratory orders do carry weight and must be respected.
“Declaratory orders would lose their usefulness if they were rendered less effective or completely ineffective by being unenforceable,” Judge Moosa wrote. “Such a situation is intolerable.”
No contempt but a warning for the future
Although the court found Home Affairs in breach of the earlier order, it was not satisfied that officials had acted in bad faith or with wilful contempt. No costs order was made, with the court noting that both sides had achieved partial success.
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