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Paternity case law

YM v LB 2010(6) SA 338 (SCA)

The facts of the abovementioned case were that two parties had been living together and were engaged. The lady, Mrs M, moved out of the house and in with her parents, after being informed by her fiancé, B, that he was planning on leaving the country to work overseas. That same month that she moved out, M found out she was pregnant.

B never disputed that he was the biological father of the child. However Mrs M got back together with her former boyfriend, and at that stage after Mrs M and her former boyfriend got married, B denied paternity. In a letter from his attorney to Mrs M, B indicated that he was willing to pay for blood and DNA tests. The lawyer’s letter further indicated that if he was shown to be the father, he would ask for full parenting rights.

The above case was first heard in the High Court. The High Court made an order that Mrs. M and the child go for DNA tests. The Supreme Court of Appeal upheld the order with costs. Lewis JA (Harms DP, Ponnan JA, Ebrahim and Pillay AJJA concurring) said that as the respondent never denied paternity in his affidavits but simply sought scientific certainty, the High Court’s finding that the appellant and Mr M could have been intimate at the time of the child’s conception was unwarranted.

The issue of paternity was thus not actually in dispute as it was determinable on a balance of probabilities. What the respondent was asking for was scientific proof-, something to which the respondent was not entitled. It was within the inherent power of a court, as upper guardian of a child, to order scientific tests if that was in the best interests of a child.

However, the instant case was not one in which that inherent power had to be invoked as paternity was not in dispute. The role of the court, and its duty, was to determine disputes in civil matters on a balance of probabilities. It was not the court’s function to ascertain scientific proof of the truth.

I find that paternity cases in South African law are always an interesting topic. The first thing that a court asks somebody in a maintenance matter is whether they are indeed the biological father of the child. If paternity is disputed, blood tests have to be done first to prove paternity.


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