The High Court decision in which a judge refused to order the minister of home affairs, immigration, safety and security to issue travel documents needed for two month-old babies to travel from South Africa to their parents' home in Namibia is "very disappointing and disturbing", the Legal Assistance Centre (LAC) said in a statement on Tuesday.
The court refused to order the government to issue the twin baby girls travel documents "on flimsy procedural grounds", and in the LAC's view neglected its primary legal duty to safeguard the best interests of the two children involved, the centre said in the statement signed by its director, Toni Hancox, and lawyer Dianne Hubbard, coordinator of the LAC's Gender Research and Advocacy Project.
These remarks were made in reaction to the judgement in which judge Thomas Masuku on Monday turned down an application by Namibian architect and university lecturer Philip Lühl, who asked the court to compel the home affairs minister to issue the daughters of himself and his same-sex partner Namibian travel documents.
The babies were born in South Africa on 13 March through a surrogate pregnancy.
On their South African birth certificates Lühl and his husband, Mexican citizen Guillermo Delgado, are recorded as the babies' parents.
Home affairs minister Frans Kapofi has stated he wants Lühl to prove he is the biological father of the twins before he would be willing to issue them Namibian travel documents.
That is not a requirement with which heterosexual parents have to comply before Namibian travel documents are issued to their children, the LAC points out in its statement.
The centre also stated that the court did not consider the best interests of the children as it is required to do in terms of Namibian law and the United Nations Convention on the Rights of the Child.
It further said the court "made no real analysis" of the two babies' best interests or its duty to protect those interests.
"At the end of the day, this is not a gay-rights issue so much as a child-rights issue," the centre said.
"The twins have every right to spend the early days of their lives with both their loving parents. It is surely in the best interests of the twins and their older brother for their family to be together."
Masuku dismissed Lühl's application after finding that the court would be encroaching on the domain of the executive arm of the state if he ordered Kapofi to issue the children travel documents while no formal application for such documents had been submitted to the Ministry of Home Affairs, Immigration, Safety and Security yet.