Births & Deaths Registration Amendment Bill: briefing

SOCIAL SERVICES SELECT COMMITTEE
23 January 2002
BIRTHS AND DEATHS REGISTRATION AMENDMENT BILL: BRIEFING

Relevant document:
Births and Deaths Registration Amendment Bill, 2001

Chairperson: Ms L. Jacobus

SUMMARY
The Department briefed the Committee on the amendments proposed to the Births and Deaths Registration Act, 1992.

MINUTES
The Home Affairs delegation comprised of Mr Khoza, Mr Kritzinger, Director Civic Services and Mr Mokgotsi of Legal Services.

The Chairperson said members would go back to report to their parties after the briefing by Home Affairs.  At a later stage a meeting would be held by the Committee to deliberate and vote on the Bill.  She pointed out that the Bill was to be dealt with in terms of section 75 of the Constitution.

Mr Khoza stated that the Bill seeks to effect amendments to the principal Act in four parts:
1. The definition of a major in the 1992 Act to be in line with section 23 of the Constitution; 
2. the definition of competent court;
3. to allow parents of children to use either or both of their surnames in registering their child's name;
4. to cater for widows as they are excluded by section 26(1)(c) of the Act.

Mr Khoza pointed out that the lowering of age would not be a law of general application but only for purposes of the Act dealing with.

He then referred members to the Memo attached to the Bill and proceeded to read from it (see appendix).

Discussion
Q. Mr Moatshe asked whether this amendment would now mean there are two age limits.  If so whether this would be in line with the view that there should be consistency throughout legislation.

A. Mr Kritzinger said that 18 years being the age of majority was only for the purposes of the Act (namely, that a child would be able to apply individually for a change of surname when they reach 18 years).  He said there was however a general move to align age with the Constitution.

Q. Dr Nel asked whether this amendment means that children can have three different surnames while born of the same parents.

A. Mr Kritzinger said different surnames would be possible, it would be up to parents to decide.

Q. Ms Lubidla asked if there would now be no payment for the double barrelled surname.

A. Mr Kritzinger pointed out that the Act currently allows for the Department to raise revenue by way of fees for applications for change of surnames.  He said at the moment the Department was not proposing a fee but that a fee may be charged at a later stage.

Q. Mr Qokweni asked what purpose the amendment regarding change of surnames was intended to serve.

A. Mr Kritzinger said this was to afford parents freedom of choice in line with the Constitution.

Q. Mrs Van Zyl asked if consideration had been given to the number of surname changes that would be allowed.

A. Mr Kritzinger said there is no limitation at the moment on the number of times that one is allowed to change their surname.  He pointed out that the change of surname applications were nothing new.  Each case is considered on merit.  Majors may provide good and sufficient reason; if they continually change they may be denied under the discretion afforded the Department by section 26 of the Act.

Q. Mr Lubidla asked if a mother would still need the father's consent where she is sole guardian and the child is registered in the Father's name.

Q. The Chairperson noted that there appeared to be emphasis on guardianship and wanted to find out what happens where a child is born out of wedlock.

A. Mr Kritzinger said sole guardianship gives a parent full control over the child, therefore a mother can act by herself and the father's consent would not be required.

However, that where a parent has sole custody, both parents must consent to the change of surname.  He pointed out that these are legal terms whereby there would be a court order to verify the position and Home Affairs would not only rely on the word of the party applying for the change.

Regarding children born out of wedlock, section 10 of the Act makes it possible for the child to be registered in the mother's surname.

The Chairperson reminded members to go back to their respective parties to discuss the Bill and that a date would be made known for voting.  The meeting was adjourned.

APPENDIX

MEMORANDUM ON THE OBJECTS OF THE BIRTHS AND DEATHS REGISTRATION AMENDMENT BILL, 2001
1. For purposes of section 28(3) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) (“the Constitution�), a child means a person under the age of 18 years.  It is thus proposes that the definition of “ 'major' or 'person of age' “ contained in section 1of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992) (“the Act�), be amended so that one becomes a major upon ceasing to be a child as contemplated in section 28 of the Constitution.

2. The expression “competent court�� as used in section 25(1)(b) and (c) of the Act is not defined in the Act, and the interpretation thereof presents some difficulties.  It is proposed that it be defined to put the matter beyond doubt.

3. In line with section 9 of the Constitution, it is deemed expedient that parents of children born during the existence of the marriage should be allowed to register their children under the surname of either the father or the mother or under both their surnames joined together as a double barrelled surname.

4. The Bill also seeks to establish the principle that the consent of the natural father is not required for the alteration of the surname of the child where the mother of the child has the sole guardianship of the child.

5. FINANCIAL IMPLICATIONS FOR STATE
None.

6. PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Home Affairs are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.