Thursday, September 21, 2017

An attorney asks what processes need to be followed for a client to change their surname.

Question: An attorney asks what processes need to be followed for a client to change their surname. They state that Home Affairs has told their client that they will need to make an application to court to do so.

My answer:

S 26(2) of the BIRTHS AND DEATHS REGISTRATION ACT NO. 51 OF 1992 states that: 'At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.'

S27 of the same act, adds: 'Publishing of alterations and amplifications of forenames and surnames.—(1)  In the case of an alteration or amplification of forename or surname mentioned in sections 23, 24 (1) and 26 (2), the Director-General shall as soon as possible after such alteration or amplification has been authorized, cause any such alteration or amplification which relates to a person of age, to be published in the prescribed manner by notice in the Gazette.
(2)  Subsection (1) shall not apply where the alteration was authorized in the prescribed manner under a witness protection plan.'

The applicable regulations framework governing what good and sufficient reason is, is GNR.128 of 26 February 2014:  Regulations on the Registration of Births and Deaths, 2014 (Government Gazette No. 37373) which states, in regulation 18, re: Assumption of another surname:

'Assumption of another surname.—(1)  An application for assumption of another surname referred to in section 26 of the Act by a person of age must be made on Form DHA-462 or DHA-196 illustrated in Annexure 10 and Annexure 11, as the case may be.
(2)  The reasons referred to in section 26 (2) of the Act must relate to—
(a)
a change in the marital status of a woman;
(b)
assumption by a person of his or her biological father’s surname, where the father has recently acknowledged paternity in terms of regulation 13 or 14; or
(c)
protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).
(3)  An application contemplated in subregulation (1) must be accompanied by—
(a)
a certified copy of the identity document or birth certificate of the applicant;
(b)
a certified copy of the identity document or valid passport of the biological mother or father or both parents of the child, as the case may be;
(c)
where applicable, a certified copy of the marriage certificate of the parents;
(d)
where applicable, a certified copy of the death certificate of any deceased parent;
(e)
where applicable, a letter issued by the Director: Witness Protection; and
( f )
proof of payment of the applicable fee.
(4)  Upon approval of an application contemplated in subregulation (1), any alteration of a forename, surname or assumption of another surname made in terms of section 24, 25 or 26 of the Act must be made—
(a)
by entering the altered forename or surname or assumed surname of the minor in the birth register; and
(b)
if the particulars of the person have been included in the national population register, by including the altered forename, surname or assumed surname in the national population register,
without erasing the previous forename, surname or assumed surname.
(5)  The assumption of another surname contemplated in subregulation (2) (a), (b) or (d) shall not have the effect of changing a person’s identity number.'

The current prescribed fee is set out in GNR.1123 of 28 December 2012:  Notice of fees payable (Government Gazette No. 36054), as 'R325-00' for 'An application by a major to assume a different surname: Provided that, should the applicant be lawfully married, the fee shall include the application of his or her spouse, as well as those of any minor, or if the applicant is divorced, a widow or a widower, the fee shall also include the application of his or her minor, if any.'

The forms to do the application are available at Home affairs. Any other reason would likely require an application to the High Court, setting out that something outside of the regulations is in fact good and sufficient cause for the purposes of the Act, despite what the regulations currently state, as the form, which I have a copy of, specifically allows a checkbox to be filled out of any of the above reasons, and only those reasons.

Nothing in this article should be relied upon as legal advice in any way or form. For that, kindly make an appointment with your attorney, and properly brief them as to all your facts and the nuances of your matter.

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