Aron Chaka v The Registrar of Births and Deaths and Daisy Mutukudzi and Master of the High Court

### Preamble
1
HH 283-24
HCH 724/24
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ARON CHAKA

versus

THE REGISTRAR OF BIRTHS AND DEATHS

and

DAISY MUTUKUDZI

and

MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE,1 July 2024 & 8 July 2024

Chamber Application

Applicant in default

J Shumba for the 1st respondent

No appearance for the 2nd & 3rd respondents

MAXWELL J     This chamber application was opposed by the first respondent. I set it down for hearing on 21 July 2024. Applicant and Counsel for first respondent appeared. Applicant requested a postponement as he felt that his relatives had to be present. He indicated that he had not been aware of the set down date and only appeared because the Registrar of this court had called him on his cell phone. Counsel for the first respondent was not opposed to the application for postponement. I postponed the matter to 1 July 2024 at 1000hours.

On the date of the hearing, applicant did not turn up. His phone remained unreachable after several attempts to call him were made by the Registrar. Counsel for first respondent prayed for the dismissal of the application with no order as to costs. I am of the view that this is an application which should not have been filed in this court in the first place. For that reason I write this judgment so that applicant will not seek rescission of the order I made in his absence and re-enroll this matter again.

Background

Applicant said in his papers that the chamber application is in terms of s 27 (4) of the Births and Death Registration Act [Chapter 5:02]. He seeks an order directing the first respondent to alter the surname appearing on his birth certificate to Mtukudzi and delete the particulars of his father and replace them with those of Oliver Mtukudzi.

In his founding affidavit he stated the following. He was informed by his biological mother, Rose Makumbe, that she and the late Oliver Mtukudzi had a love relationship in 1978 which led to their cohabiting for a couple of months. They considered themselves as husbands and wife though their union was not registered. His mother fell pregnant and he was born on 3 January 1979. Misunderstandings resulted in his parents separating before a birth certificate was obtained for him. His mother returned to her maternal relatives with him. With the passage of time his mother got married customarily to one Josiah Chaka who assumed the role of a caring father and provider of basic necessities.

Efforts to get a birth certificate in the name of his biological father failed. The effect of his parent’s separation and failure to acquire a birth certificate for him negatively affected him when he became ripe to start schooling. His mother was forced to acquire a birth certificate using her maternal details and other supportive documents. Josiah Chaka intervened and agreed to use his own details to appear on the birth certificate as his father. On the strength of the birth certificate he was enrolled for primary and secondary education. When he reached 25 years his mother informed him of his biological father and that he assumed the surname Chaka for his convenience.

In 2010 his mother took him to Norton where the late Oliver Mutukudzi resided. He was introduced to the late Oliver Mtukudzi who acknowledged him and promised to introduce him to his other siblings from an earlier marriage, Samantha and Selma. The late Oliver Mtukudzi passed away before the introductions were done. The introductions were done in April 2019 by one Godfrey Mukonowenzou, the brother to the late Oliver Mtukudzi, who was appointed family guardian (musara pavana). He promised applicant that he and his kinsman would initiate the necessary process to correct the details on the applicant’s birth certificate and align them to his correct paternal lineage cogent to his blood, tribal roots and ancestry.

In February 2022 a team consisting of Godfrey Mukonowenzou, Bybit Mutukudzi, Rose Makumbe and applicant visited the offices of the Registrar of Birth and Deaths. They were interviewed and asked to depose to affidavits stating the history, facts and other supporting details relating to his birth and parents. An affidavit from Josiah Chaka was requested. It could not be availed as he had passed away in 2019. An affidavit was deposed to by applicant’s half-sister, Jenifer Chaka.

Despite providing the affidavits requested, the first respondent further requested for a court order on the basis that owing to the popularity and status of the late Oliver Mtukudzi, an order from a court of law was necessary. Godfrey Mukonowenzou approached the community court of Chief Mutumba on 26 February 2023 seeking an order to compel second respondent to release Oliver Mtukudzi’s death certificate. A default judgment was issued. When applicant approached the first respondent with the order from the community court he was advised that the High Court had the necessary jurisdiction to issue an appropriate order. He subsequently filed the present application. To the application, he attached the affidavits filed with the first respondent. Godfrey John Mukonowenzou had deposed to an affidavit confirming Oliver Mtukudzi’s relationship with Rose Makumbe, the birth of the applicant, and the separation of his parents. Bybit Mtukudzi had deposed to an affidavit confirming that she knew about the applicant’s birth and that the applicant was her late brother’s son. Rose Makumbe had deposed to an affidavit outlining her relationship with the late Oliver Mtukudzi, the birth of the applicant and the circumstances in which a birth certificate was obtained for the applicant. Jennifer Chaka had stated in her affidavit that her father used to tell her that although his name appears on the applicant’s birth certificate he is not his biological son as his mother was already pregnant with another man called Oliver Mtukudzi at the time they started cohabiting.

First respondent opposed the application pointing out that the relief sought by applicant is actually the cancellation and re-registration of the birth certificate. It is therefore imperative for applicant to satisfy the requirements for cancellation and re-registration of his birth certificate. First respondent pointed out that applicant must avail the late Oliver Mtukudzi’s death certificate and affidavits from Josiah Chaka’s blood relatives confirming that Josiah Chaka is not applicant’s biological father. First respondent further requested a paternity test.

Applicant filed an answering affidavit. He stated that there were no surviving relatives of Josiah Chaka. Further that second respondent was refusing to give the late Oliver Mtukudzi’s death certificate. In his view a paternity test is not necessary as there are affidavits from members of Mtukudzi’s family accepting him.

A number of anomalies exist in the application. Firstly, applicant cited the “Register” of Births and Deaths. That is not a person. He ought to have cited the “Registrar” General of Births and Deaths. Secondly, section 27(4) of the Birth and Deaths Registration Act [Chapter 5:02] does not provide for the filing of a chamber application. It states;

“(4) without derogation from its powers in any civil proceedings, a court may, at the conclusion of any criminal proceedings, order the Registrar General to-

Register any birth, still birth or death of a person; or

Delete, remove or correct any false information or entry; or

Reproduce or replace any destroyed or damaged register or document.”

In my view, the section under which applicant approached this court applies where someone has been prosecuted for a criminal offence. In casu, the relevant offence would have been giving false information for the purposes of the registration of a birth. Section 27 (2) (a) of [Chapter 5:02] says such person shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. Had Josiah Chaka, the informant on the birth certificate been convicted of giving false information the court in which the proceedings would have been held would then be authorized to give an order under which section the applicant approached this court. Needless to say, there were no criminal proceedings. It is therefore incompetent for this court to give an order consequent to the conclusion of criminal proceedings when none had been held.

The third issue is that applicant that the application was brought in terms of rule 61 (1) of the High Court Rules 2002. There are no such rules.

Fourthly applicant stated that a birth certificate was obtained to facilitate his access to education, when he became “ripe to start schooling.” I am alive to the fact that in the 1980s when applicant would have started schooling, children were enrolled at between six or seven years of age. It would have followed that the birth certificate would have been obtained in the eighties if it was to facilitate the applicant's schooling. The papers before the court tell a different story. The birth was registered on 4 October 1979, the same year the applicant was born, exactly nine months after his birth. However, the birth certificate was obtained on 4 November 2005. By that time applicant was twenty-six years old. Several issues arise on the birth certificate.

To start with, it was obtained after the applicant had been informed of his biological father at the age of twenty-five years as he alleged. Secondly, at 26 years old, the purpose of the birth certificate cannot be said to help him get access to education. Thirdly, the mother of the child on the birth certificate is given as Rose Kasaki. No affidavit confirmed that Rose Makumbe is the same person as Rose Kasaki. The affidavits confirming a relationship between the late Oliver Mtukudzi and Rose Makumbe are therefore not relevant where the mother of the child is given as Rose Kasaki.

Applicant is a child born out of wedlock. His birth was registered in compliance with section 12 (2) (a) of [Chapter 5:02] Joshua Chaka acknowledged himself to be the father of the child. Applicant is seeking to have his case fall under s 12 (2) (a) of [Chapter 5:02] which provides:

“2 A registrar shall not enter in the register the name of any person as the father of a child born out of wedlock except-

(a)……..

(b)……..

(c) If the alleged father of the child is dead, upon the joint request of the child’s mother and a parent or near relative of the alleged father.”

In my view this would have been appropriate if his birth had not been registered under section 12 (2) (a) of [Chapter 5:02]. Because of that registration, there is a rebutable presumption that Josiah Chaka is the applicant’s father. Mere affidavits are not sufficient to rebut that presumption in the circumstances of this case. Paternity must be sufficiently proven to rebut the presumption of Josiah Chaka being the father of the applicant. In any event, the mother of the child is not the one requesting the registration of the child in the deceased’s name. As stated above, the mother of the child is Rose Kasaki who has not approached the relevant authorities.

I believe a relative can only be involved in the registration of a birth at the outset. I don’t believe that it was the intention of the legislature that when a man who was not registered as the father of a child dies, his near relatives come forward and acknowledge paternity on his behalf, alter the registered details and re-register the child’s birth. I agree with the sentiments expressed in the case of the Estate Late Elias Jonathan Kanengoni & Another v Farai Manyika and Others HH 160/17 that

“There is no suggestion in the provision that it applies to a re-registration of the birth of a child born out of wedlock. Re- registration of births is only permissible under s 19 of the Act. Section 19 stipulates as follows:

“s19 re- registration of births of persons born out of wedlock

Where any person has been registered as born out of wedlock and evidence is presented to the Registrar General satisfying him that, by operation of any law, the person must be regarded as born in wedlock at the time of the initial registration.

An application for re-registration in terms of subsection (1) may be made by either of the parents of the person concerned, whether or not he has attained the age of eighteen years, or if either of both of his parents are dead, by his nearest relative or legal guardian.”

Section 19 provides for a scenario where a person who has previously been registered as having been born out of wedlock may upon production of evidence that he must be regarded as born in wedlock, is re-registered. Section 19 has the effect of legitimizing persons born out of wedlock where the child’s parents subsequently marry, thereby legitimizing the child. Re- registration of a birth in terms of this section can only be changed from being “born out of wedlock” to “ born in wedlock” and the parents approach the court for a re-registration of the birth resulting in another birth certificate being taken in the father’s name.

Applicant cannot competently request a re- registration of his birth. Firstly his parents never married so he still remains a child born out of wedlock. Secondly, the law gives the right to make the application for re-registration to a parent or relative. A child cannot make the application for himself. The legislature emphasized this by stating that this is despite the fact that the child has attained eighteen years.

Because of the anomalies in applicant’s papers, he request by the first respondent provides the way forward for applicant. The prayer at the conclusion of the opposing affidavit is,

“Wherefore I pray that the applicant produces more concrete evidence in the form of a paternity test and authentic affidavits to prove that, indeed the late Oliver Mtukudzi is his biological father and not Josiah Chaka.”

Once applicant obtains scientific confirmation that the late Oliver Mtukudzi is his biological father he can approach the Registrar-General in terms of s8 of [Chapter 5:02] which provides for the correction of an error of fact or substance in the register.

Applicant was therefore improperly before this court. The application is therefore struck off the roll with no order as to costs.

Maxwell J:

Civil Division of the Attorney General’s Office, first respondent’s Legal Practitioners.