TIMBE v REGISTRAR-GENERAL 2008 (2) ZLR 250 (S)

Flynote

Family law — child — birth — registration of — correction of "error" in register — meaning of "error" — when Registrar may correct entry — courses open to Registrar when entry based on false information — not open to Registrar to cancel entry without court order0020

Headnote

The appellant was the mother of two children. Before their birth she had married a man under customary law, unaware that he had been previously married under the civil law some 20 years earlier. After the birth of each child, the appellant and the man gave notice of the birth and its particulars to the Registrar for purposes of registration. As a result of the information they supplied, the man's name was entered in the register as the father of each child. He loved and cared for the children as their father. It subsequently emerged that he could not, due to physical deformities, have been the father of the children, although he always acknowledged them as his. He was later killed in a car accident, and in a bid to prevent the children from sharing in the inheritance of his estate, the deceased's relatives approached the respondent and asked him to direct that the birth certificates of the two children be cancelled. Purporting to act in terms of s 8(1) of the Births and Deaths Registration Act [Chapter 5:02], he cancelled the registration of the children's births, on the ground that false information had been given that the deceased was their father. The appellant unsuccessfully sought an order in the High Court setting aside the respondent's purported cancellation of the births.

Held, that the Registrar has the power under s 8(1) of the Act to direct the correction of any error in any register, whether it is a clerical error or an error of fact or substance, if he discovers the error himself or upon an application by any person. Under s 8(3), corrections shall be made without erasing the original entry. "Entry", in relation to any register kept in terms of the Act, is defined in s 2(1) as including any information contained in a birth certificate which forms part of that register. Section 8(1) is the only section which gives the Registrar the power to correct an entry in a register without erasing the whole entry altogether. The subsection vests him with a discretionary power, exercisable only when he has satisfied himself that what he is being called upon to correct is an error in the register. An error of fact or substance implies the existence of a state of mind in regard to the fact or state of facts but one which does not accord with the facts or state of facts in question. For purposes of exercising the powers of correction under s 8(1) of the Act, it would have had to be shown that the man had genuinely believed that he was the father of the children and had caused that belief to be entered in the register when in fact another man was the father of the children. That would have been an error of fact found to have been entered in the register. It would not have been enough for the respondent to find that the man was not the father of the children without relating that fact to his state of mind for the existence of an error of fact to be established.

Held, further, that cancellation of a birth certificate, on the other hand, has the effect of erasing the entry in the register. There is no section in the Act which gives the respondent power to cancel an entry in a register without an order of a court. The respondent did not find that there was an error of fact in the register relating to the entry of the name of the man as the father of the two children; he found that there was a false entry in the register relating to the paternity of the children. If there was a false entry, it could be cancelled but only on the order of a court.