L.M.M v M.A.L and Others (Reasons) (23156/24) [2025] ZAWCHC 474 (14 May 2025)

Case Note

L. M. M. v M. A. L. and Others (23156/24) [2024] ZAWCHC — reasons delivered 14 May 2025, Western Cape Division, Cape Town (per Saller AJ)

Reportability

This judgment has been marked Reportable because it clarifies the intersecting operation of section 28 of the Children’s Act 38 of 2005 and section 7(2) of the Births and Deaths Registration Act 51 of 1992 in circumstances where genetic testing conclusively disproves paternity after formal acknowledgement at birth. The decision supplies much–needed practical guidance on the procedure to amend the population register and a birth certificate when only one parent is willing to cooperate, and it balances the best-interests standard against the constitutional rights of a non-biological parent who seeks termination of parental responsibilities and rights. Its careful engagement with Constitutional Court authority on the limits of the paramountcy principle makes it significant precedent for future disputes involving conflicting adult and child interests.

Cases Cited

Y.M. v L.B. 2010 (6) SA 338 (SCA)
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA 406 (CC)
S v M (Centre for Child Law as amicus curiae) 2008 (3) SA 232 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 28)
Children’s Act 38 of 2005 (sections 28(1)–(4))
Births and Deaths Registration Act 51 of 1992 (sections 7(2), 7(4))

Rules of Court Cited

No specific Uniform Rule of Court was expressly invoked; the court acted under its inherent jurisdiction as upper guardian of minors when referring the matter to oral evidence and in granting substantive relief.

HEADNOTE

Summary

The applicant, having been recorded as father of a three-year-old girl after acknowledging paternity at birth, obtained a DNA test which definitively excluded him as the child’s biological father. He sought an order terminating all parental responsibilities and rights in terms of section 28 of the Children’s Act and compelling the Department of Home Affairs to remove his particulars from the child’s birth certificate under section 7(2) of the Births and Deaths Registration Act. The mother opposed and asked for a second paternity test. The Department abided the court’s decision but filed an explanatory affidavit outlining the administrative steps required for amending the register. After hearing oral evidence from both parents, Saller AJ refused the request for a second test, found the first test conclusive, and granted the substantive and practical relief sought.

Key Issues

• Whether the court should compel a second DNA test when one scientifically reliable test already excludes paternity.
• Whether it is in the best interests of the child to terminate the applicant’s parental responsibilities and rights despite potential loss of support.
• Whether the High Court can authorise the Department of Home Affairs to amend the population register and birth certificate on the strength of a single parent’s application when the other parent withholds consent.

Held

The court held that a further paternity test was unwarranted; the first result comfortably rebutted the presumption of paternity on a balance of probabilities. Termination of the applicant’s parental responsibilities and rights was justified because the relationship had irretrievably broken down and continuing the legal bond would not serve the child’s best interests. Exercising its inherent jurisdiction as upper guardian, the court authorised the Department to rectify the register and issue a new birth certificate naming only the mother. No order as to costs was made.

THE FACTS

The applicant and first respondent commenced a romantic relationship “late in 2021.” Both accept that the first respondent had been involved with another man immediately beforehand. When the child was born on 30 June 2022, the applicant relied on the mother’s assurances of paternity, acknowledged the child, and was recorded on the birth certificate.

For more than two years the applicant fulfilled the duties of a father, providing financial maintenance, medical aid cover, and regular weekend contact. Doubts about paternity persisted, however, prompting him to pay for a DNA test at a Lancet Laboratory facility on 25 September 2024. The written result dated 18 October 2024 conclusively excluded him as the biological father.

Confronted with this outcome, the applicant asked the mother to cooperate in amending the birth record. She refused or delayed, requesting a second test. The applicant ceased financial support, and the child moved to Lesotho to live with her maternal grandmother because the mother, now unemployed, could not afford to keep her in Cape Town. On 24 October 2024 the applicant launched this application.

THE ISSUES

First, the court had to decide whether the mother’s eleventh-hour request warranted compelling the applicant to undergo a second paternity test. This required examining the reliability of the first test, the parties’ explanations for any perceived irregularities, and the child’s interests in certainty and expedition.

Secondly, if a second test was refused, the court had to determine whether sufficient grounds existed to terminate the applicant’s parental responsibilities and rights in terms of section 28 of the Children’s Act. That enquiry entailed weighing the child’s best interests, the extent of the applicant’s prior commitment, the current state of the relationship, and the foreseeable consequences of termination.

Thirdly, the court had to fashion an order that would give practical effect to its substantive findings by enabling the Department of Home Affairs to excise the applicant’s details from the population register and to issue a corrected birth certificate, notwithstanding the mother’s refusal to sign the prescribed forms.

ANALYSIS

Saller AJ accepted that a court may, in appropriate circumstances, compel a party to submit to genetic testing, but emphasised the intrusion into bodily integrity and privacy such an order entails. Citing Y.M. v L.B., the judge held that compulsion is unnecessary where the existing evidence already establishes paternity (or non-paternity) on a balance of probabilities. Here, both parents were present when samples were taken, the laboratory is reputable, and the mother conceded she had no substantive reason to doubt the result apart from the manner of its communication.

Turning to the best-interests assessment, the court engaged extensively with Constitutional Court jurisprudence—De Reuck and S v M—to underscore that the paramountcy of children’s interests does not automatically trump all competing rights. A contextual, individualised enquiry is required. The applicant’s emotional distress, the breakdown of the relationship, and the improbability of constructive future interaction weighed heavily. The child, though losing a source of support, remained in a safe familial environment and could in time establish ties with her biological father.

Finally, the court examined the statutory scheme. Section 7(2) of the Births and Deaths Registration Act empowers the Director-General to rectify inaccurate particulars, but departmental practice requires both parents’ consent unless a court order directs otherwise. Using its inherent authority as upper guardian, the court found it necessary and just to authorise a unilateral application by the applicant, supported by the DNA report, to effect the rectification.

REMEDY

The court ordered:

(a) Termination, in terms of section 28(1) read with section 28(3) of the Children’s Act 38 of 2005, of all parental responsibilities and rights of the applicant in respect of the minor child.

(b) Authorisation for the applicant alone to file the prescribed DHA-526 and related DHA-24 forms, annexing the DNA report and this order, to enable the Director-General to delete his particulars from the population register and to issue a corrected birth certificate reflecting only the mother’s details.

No order as to costs was made, the court noting the mother’s impecuniosity, the Department’s helpful stance, and the applicant’s understandable resort to legal representation after delays.

LEGAL PRINCIPLES

First, a court will not order further intrusive genetic testing once a reliable test already resolves paternity on a balance of probabilities; compulsion is reserved for genuine uncertainty where the child’s interests so demand.

Secondly, the best-interests of the child remain paramount but are not absolute. They must be balanced against other constitutional rights, and the enquiry is fact-sensitive and contextual. Terminating legal parenthood can, in appropriate circumstances, align with a child’s best interests when the relationship has irretrievably broken down and continuation serves no constructive purpose.

Thirdly, the High Court, as upper guardian of all minors, possesses inherent jurisdiction to craft practical orders enabling rectification of the population register under the Births and Deaths Registration Act when statutory processes stall because a parent withholds consent. This jurisdiction is exercised to safeguard the accuracy of state records and to resolve legal limbo in a manner consistent with constitutional and statutory mandates.