PAUNGANWA v REGISTRAR OF BIRTHS AND DEATHS & ANOR 2016 (2) ZLR 51 (H)

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Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of Rights " rights of children " right to name and birth certificate (s 81) " not violated by s 12 of Births and Deaths Registration Act [Chapter 5:02]

Family law: " child " birth " registration " child born out of wedlock " father deceased " requirement of relatives of father to confirm paternity " not unconstitutional

Headnote

A woman who had been in an unregistered customary law union lost her husband two months after the birth of their baby, before the birth was registered. The Registrar refused to issue a birth certificate including the father's name, citing s 12(2)(c) of the Births and Deaths Registration Act [Chapter 5:02] which, in a case of the father of a child born out of wedlock, required a witness from the father's family to confirm paternity. The mother had been unable to secure their co-operation and was now applying for an order compelling the Registrar to issue the birth certificate including her late husband's name as father. She claimed that the section of the Act violated the child's rights guaranteed in s 81(1)(b) and (c) of the Constitution " the right to a name and family and to be issued promptly with a birth certificate. Furthermore, it violated against her rights as it discriminated against her as a woman who was in a customary law marriage; she sought to have the section declared unconstitutional. The respondent argued that there was no evidence of the putative marriage, and such discrimination was necessary to protect families from fraudulent claims of paternity.

Held, that s 86 of the Constitution allows limitations to rights in specified circumstances and s 56 allows for discrimination under certain circumstances. The applicant had not been discriminated against on the basis of guardianship, gender or her unregistered marriage, as the requirements were not onerous or unreasonable.

Held, further, that the requirement of the Act that paternity be confirmed by the husband's relative did not violate the child's right to a name, as it was reasonable and justifiable in a democratic society.

Held, further, that the applicant had alternative remedies, as she could registerthe child in her own name or seek an order from the court requiring the relatives to undergo DNA testing.