Court name
Supreme Court of Zimbabwe
Case number
SC 25 of 2008
Civil Appeal 135 of 2007

T v Registrar General of Births and Deaths (135/07) (SC 25 of 2008, Civil Appeal 135 of 2007) [2008] ZWSC 25 (20 October 2008);

Law report citations
Media neutral citation
[2008] ZWSC 25










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Certain personal/private details of
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REPORTABLE ZLR (19)





Judgment
No. SC 25/08


Civil Appeal No. 135/07








Mrs. T
v REGISTRAR GENERAL OF BIRTHS AND DEATHS








SUPREME
COURT OF ZIMBABWE


MALABA JA, ZIYAMBI JA &
GARWE JA


HARARE, JANUARY 14 &
OCTOBER 21, 2008









N P Munangati, for the appellant


M Chimombe, for
the respondent









MALABA JA: This is an appeal against the judgment of the High
Court given on 30 July 2007 dismissing with costs an application
by
the appellant for an order declaring that the decision by the
respondent to cancel registrations of the births of two children
of
the appellant was void.





The facts of the case
are these. The appellant is the mother of two children, X born on
[date] 1995 and Y born on [date] 1997.
The respondent is the
officer-in-charge of the Central Registering Office for all notices
of births. He has the power under s
8(1) of the Births and Deaths
Registration Act [Cap 5:02] (“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.






In 1985 the appellant solemnized a customary marriage with one Mr.
T in terms of the Customary Law Marriages Act [Cap 5:07]. She
did not know at the time that Mr. T had on [date] 1963 solemnized a
civil marriage with one G.M. in terms of the Marriages
Act [Cap
5:11
]. The appellant bona fide believed that Mr. T was a
bachelor. It was not suggested that she had knowledge of the
existence of the other marriage during
the time she lived with Mr. T
as husband and wife. Theirs was therefore a putative marriage.





After the birth of
each child, the appellant and Mr. T gave notice of the birth and its
particulars to the Registrar for purposes
of registration. As a
result of the information they supplied, the name of Mr. T was
entered in the register as the father of
each child. He loved and
cared for the children as their father.





In 2001 Mr. T had an
altercation with the appellant’s sister which resulted in him
shooting her dead. At the trial, on a charge
of murder, he raised
the defence of provocation, the substance of which was that the dead
woman had humiliated him by mocking him
in front of the children as
being barren. On 30 October 2002, the court ordered that he be
examined by a doctor to ascertain the
truthfulness of the allegation
that he had no sexual organs. The examination which was conducted on
9 January 2003 revealed scars
below both nipples suggesting that
breasts had been removed. It also revealed that he had a small penis
which was 4cm long. Testicles
were absent from both scrotal sacs.
The doctor did not express an opinion as to whether or not Mr. T was
capable of having intercourse
and bearing children. On the basis of
the results of the medical examination, Mr. T was found guilty of
culpable homicide.





Mr. T died in a car
accident on 18 February 2004 on his way home from collecting one of
the children from school. Up to the time
of his death Mr. T had
acknowledged himself as being the father of the two children.





After the death of
the deceased 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. They
alleged that the deceased could not
bear children and produced a copy of the medical report on the
examination conducted on the
deceased by the doctor on 9 January
2003. They had also obtained an opinion on 1 March 2005 from a
doctor who after studying the
contents of the medical report said
that it was not possible that the deceased could have been capable of
child bearing. At a
meeting of relatives of the deceased called by
the respondent on 9 March 2005, the appellant denied the allegations
that the deceased
was not capable of bearing children. She pleaded
with the respondent not to cancel the registrations of the children’s
births
without having first obtained an order from a court.





On 17 March 2005, the
respondent had the registration of the births of the children
cancelled on the ground that false information
had been given that
the deceased was their father.





In the application
before the High Court for a declaratory order, the respondent
defended the decision to cancel the children’s
birth certificates
on the ground that he was authorized to do so under s 8 of the Act.
The section provides as follows:





“8. Correction of
error in register






  1. The
    Registrar-General may, subject to any regulations made in terms of
    section twenty-six, direct the correction of any error
    in any
    register, whether it is a clerical error or an error of fact or
    substance.








  1. Any
    person may, upon payment of the prescribed fee, apply to the
    Registrar-General for a correction to be made under subsection
    (1).







  1. Corrections
    shall be made without erasing the original entry, and shall be
    authenticated by the signature of the Registrar-General
    or a
    registrar.







  1. The
    fee payable in terms of subsection (2) shall not be refunded unless
    the application is made in regard to an error which was
    made by the
    Registrar-General, a registrar or a member of their staff.”








Although Mrs Munangati argued strongly that the power given to
the Registrar-General under s 8(1) of the Act did not cover a
situation where the action
taken would lead to a change of the status
of the person whose birth was registered, the learned Judge held that
the cancellation
of the registrations of the children’s births by
the respondent was intra vires s 8(1) of the Act.





The learned Judge said:



“Considering the facts before me, it is my view that the
Registrar-General could act as he did in terms of s 8(1) of the
Births
and Deaths Registration Act [Cap 5:02]. It allows
the Registrar to correct any errors be they clerical or errors of
fact or of substance in his registers. The Registrar-General
after
examining the medical reports presented to him and carrying out an
enquiry as is confirmed by his papers, he determined that
the late
Mr. T could not have fathered the two minor children and proceeded to
cancel the birth certificates.





In other words he made
a declaration that those two minor children could not have been the
late Mr. T’s children and he was saying
there was therefore an
error of fact and substance in his register as the late Mr. T was
indicated as the father of those children.
In doing so, the
Registrar-General was making an administrative decision in the
exercise of his administrative functions as provided
for in s 8(1).”







Regrettably, I am unable to agree with the learned Judge in holding
that the respondent was exercising the powers vested in him
under s
8(1) of the Act when he cancelled the children’s birth
certificates. “Entry” in relation to any register kept in
terms
of the Act is defined in s 2(1) to include any information contained
in a birth certificate which forms part of that register.
Section
8(1) is the only section which gives the respondent the power to
correct an entry in a register without erasing the whole
entry
altogether. Cancellation of a birth certificate 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.





Section 8(1) vests the
respondent 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 Mr. T 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, as the learned Judge thought, for the respondent to find
that Mr. T 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.





As a result of a
failure to comprehend the essence of an error of fact, the learned
Judge did not appreciate the fact that the
respondent did not find
that there was an error of fact in the register relating to the entry
of the name of Mr. T as the father
of the two children. The
respondent found that there was a false entry in the register of the
fact that Mr. T was the father of
the children. He said that the
entry in the register was as a result of Mr. T, with the consent of
the appellant having given
the Registrar false information on the
fact of paternity of the children. It was for that reason that the
respondent said he cancelled
the children’s birth certificates.
The letter of cancellation dated 17 March 2005 clearly states that
the birth certificates
were cancelled “as false information was
given at the time of registration”. In paragraph 14 of the
opposing affidavit the
respondent reveals that the decision to cancel
was arrived at on the basis of information received after the
registration of the
births of the children. He said:






“Ad Paragraph
16








    1. Evidence
      from experts in the medical field and affidavits from the deceased
      relatives confirming that the late Mr. T could not
      have children
      resulted in the cancellation of the birth registration”.









So the ground on which the birth certificates were cancelled was that
when he had full knowledge of the fact that he was infertile
or
impotent and could not have intercourse and bear children, Mr. T,
with the consent of the appellant, fraudulently misrepresented
to the
Registrar through notices of births of the children that he was the
father and got his name entered in the register as the
father of the
children for the purpose of obtaining the registrations of births of
the children. There could not be an error of
fact if Mr. T and the
appellant were found to have acted in concert and deliberately gave
false information on the fact of the
paternity of the children to the
Registrar.





It is also important to
note that a finding of the existence of an error in a register
attracts correction of the error whilst a
finding that false
information was given to a Registrar for the purposes of obtaining
registration of a birth leads to the cancellation
of the entry
itself. Section 8(3) of the Act specifically prohibits the erasure
of the original entry by the respondent in the
exercise of his powers
under s 8(1). A careful examination of the various provisions of the
Act shows that the power to order
cancellation of an entry in a
register vests in a court. The respondent can only cancel an entry
in the Register upon an order
of a court. Section 27(2)(a) of
the Act makes it an offence to wilfully give any false information
for the purposes of the
registration of a birth of a child. Section
27(4)(b) provides that without derogation from its powers in any
civil proceedings,
a court may, at the conclusion of any criminal
proceedings, order the Registrar to delete or remove any false
information or entry
in the register. It was for a court to make a
finding that the entry made in the register to the effect that Mr. T
was the father
of the children was false. As the respondent
purported to cancel the birth certificates of the children without
having been ordered
by a Court to do so his action was unlawful.





The appeal succeeds
with costs. The order of the court a quo is set aside and
substituted with the following -



“(1) The decision of the respondent to cancel the birth
certificates of the minor children X (born [date] 1995) and Y (born
[date] 1997) is null and void.







  1. The respondent shall within 7 days of this order cause to be issued
    to the children, birth certificates containing the same particulars

    as were in the register at the time the cancellation was effected.









  1. The respondent is to pay the costs of the application.”

















ZIYAMBI JA: I agree














GARWE JA: I agree
















Munangati & Associates, appellant’s legal practitioners


Civil
Division of the Attorney-General’s Office
, respondent’s legal
practitioners