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[2015] ZAGPJHC 288
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D v M and Others (30619/2015) [2015] ZAGPJHC 288 (11 December 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case No: 30619/2015
DATE: 11 DECEMBER 2015
In the matter between:
D
..................................................................................................................................................
Applicant
And
M
....................................................................................................................................
First
Respondent
M in her capacity as mother
And guardian of
Z
....................................................................................................
Second
Respondent
SETSHABA PENSION
FUND
..................................................................................
Third
Respondent
Heard on: 20 November 2015
Judgment on: 11 December 2015
Summary:
Minor - Disputed paternity –
Evidence – DNA tests – Court’s power to order such
tests in circumstances where
only one parent is alive and the mother
refuses to subject herself and the minor to the tests – whether
paternity can be
proved without access to the body of the alleged
father - whether executrix has locus standi to launch an application
to compel
the mother and child to undergo such tests in circumstances
where there is a possibility that the estate may be a beneficiary of
a death benefit – when hearsay evidence is admitted when it is
in the interests of justice to do so.
JUDGMENT
CANCA AJ
INTRODUCTION
[1] I have decided not to disclose the
identities of some of the parties because a minor child is involved.
[2] This is Part B of an application in
which the applicant seeks a final order compelling the first and
second respondents, who
is one and the same person, being the mother
and her minor son Z, to subject herself and her minor son to DNA
tests for the purpose
of determining whether her deceased son, SD, is
the biological father of Z (“the minor child”). The
applicant undertakes
to pay the costs of the tests.
[3] Following the death of SD on 22
February 2015, the applicant ascertained that a death benefit
amounting to some R2 000 000.00
became payable by the third
respondent to his dependent(s), or failing any dependent or nominated
beneficiary, to his estate. The
applicant also ascertained that the
third respondent had determined that the minor child was a dependent
in terms of its rules
and would be the beneficiary of the death
benefit. The applicant, who together with others had queried the
minor child’s
paternity during SD’s lifetime, requested
the third respondent to subject the first respondent and the minor
child to DNA
tests in order to get certainty as to his paternity.
This request was refused but the applicant was given some time to
present
the third respondent with irrefutable proof that the minor
child was not SD’s.
[4] When the first respondent refused a
request by the applicant to undergo DNA tests together with the minor
child, the applicant
sought and obtained, in Part A of this
application, the following order:
“1.The Third Respondent is
interdicted and restrained from paying out the death benefit of the
late [SD] to the Second Respondent
or to any other person pending the
determination of the relief sought in Part B of the application.”
[5] The first respondent opposes the
application in its entirety.
PARTIES
[6] In addition to being SD’s
mother, the applicant is also, by virtue of Letters of Authority
issued by the Assistant Master
of the High Court: Johannesburg, the
executrix of his estate.
[7] The first respondent is also cited
as the second respondent in her representative capacity as the minor
child’s mother
and legal guardian.
[8] The third respondent is the pension
fund responsible for the administration and distribution of SD’s
death benefit.
BACKGROUND
[9] The first respondent and SD were
involved in an intimate relationship from about November 2005 until
the middle of 2010. Z was
born on 28 December 2008, approximately one
and a half years before the relationship ended. There are various
factual disputes
on the papers as to the nature of the relationship
between SD and the first respondent and whether or not SD still
considered himself
Z’s father prior to his death in February
2015. Therefore, this matter has to be decided in accordance with the
principle
set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 H – I. See also Rail
Commuters Action Group & Others v Transnet Ltd t/a Metrorail &
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at paragraph 53. This aspect of the
matter is dealt with more fully in paragraph [25] below.
[10] The applicant avers that her son’s
relationship with the first respondent was tumultuous and marked by
drug and physical
abuse by both parties, which at some point, when
they were living in Port Elizabeth, resulted in SD’s being
hospitalized
after being allegedly stabbed by the first respondent.
The applicant also avers that there was a break in the relationship
of approximately
three months following the stabbing incident during
which period the first respondent returned to live in Johannesburg.
The parties
reconciled and the first respondent returned to live with
SD in Port Elizabeth. Shortly after their reconciliation the first
respondent
apparently informed SD that she was pregnant with Z, so
the averment continues.
[11] The applicant avers further that,
when Z was approximately a year old, she, SD and certain members of
her family started to
doubt the child’s paternity. Their
suspicions were apparently based on the child’s appearance, the
contention being
that everyone in SD and the first respondent’s
families were fair whereas the minor child was dark in complexion. SD
allegedly
also expressed doubts about the minor child’s
paternity to friends and had allegedly requested a paternity test
which the
first respondent apparently refused, so the applicant
avers. In support of this allegation, the applicant annexed two
affidavits
deposed to, respectively, by SD’s cousin and a
long-time friend. A transcript, allegedly of a Facebook conversation
between
SD and another friend, was also annexed to the founding
affidavit. In these documents SD questions Z’s paternity and
states
that his requests for DNA tests were rejected by the first
respondent. The first respondent attacks the transcript of the
Facebook
conversation on the basis that same is hearsay and could be
a fabrication produced by anyone. I agree. Accordingly, no weight is
attached to the contents of the Facebook transcript as it is not
accompanied by an affidavit verifying its contents. The applicant
also avers that SD stopped paying maintenance for the minor child
when he began to doubt that he was the father.
[12] The first respondent denies the
aforementioned averments. The difficulty is that these denials are,
in the main, bald. The
first respondent simply does not counter with
sufficient particularity the averments regarding the alleged stabbing
incident, the
drug abuse and the averment that, following a hiatus of
three months in the relationship, she conceived the minor child
shortly
after the reconciliation (the inference being that she was
already pregnant with Z when she reconciled with SD). I am of the
view
that the latter allegation carries no weight, as there is no
evidence as to when the minor child was born following the
reconciliation.
There is also no meaningful response to the
allegation by SD’s long-time friend that SD had queried the
minor’s child’s
paternity and had requested DNA tests
which the first respondent allegedly refused. The first respondent’s
reply to this
allegation is merely to quote a paragraph in a letter
the third respondent addressed to the applicant stating that if SD
had questioned
his paternity, he had approximately seven years to
rectify his legal relationship with Z but had failed to do so. The
allegation
of lack of maintenance by SD is simply countered with a
statement that SD maintained the minor child on a casual basis as
they
did not have a formal parental plan.
[13] It is difficult to understand why
the first respondent did not consider it necessary to respond with
greater particularity
to those allegations. To simply dismiss those
serious allegations as ill-founded, speculative and hearsay is
clearly not sufficient
in motion proceedings.
[14] In her opposition to the
application, the first respondent, firstly, challenges the
applicant’s locus standi , contending
that, being neither a
dependent nor a complainant in terms of the Pension Fund Act 24 of
1956 (the “Pension Fund Act”)
and the third respondent’s
rules (“the Rules”), the applicant lacked the necessary
capacity to launch this application.
Secondly, the first respondent
contends that, instead of launching this application, the applicant
ought to have reviewed the third
respondent’s decision to
regard Z as the beneficiary of the death benefit.
[15 I now turn to consider whether
there is merit to the respective stances adopted by the parties.
LOCUS STANDI
[16] The crisp issue to be determined
is whether a person, who is not a dependent or a complainant in terms
of the Pension Fund
Act or the Rules, but who has been properly
appointed as an executor or executrix of a deceased member’s
estate, is entitled
to the relief sought in this application.
[17] It is common cause that, following
her suspicions regarding the minor child’s paternity, the
applicant had no relationship
with the first respondent and the minor
child. The applicant contends, however, that, firstly, as the mother
of SD, she has an
interest in the matter as final resolution of the
question surrounding Z’s paternity would contribute to his
development
and strengthen the ties with the paternal side of his
family. It would also ensure that Z does not unduly benefit from SD’s
estate, in the event of it being found that SD is not the father, so
the contention continues. Secondly, Mr Mabuda, for the applicant,
sought to persuade me in argument that the applicant also had an
interest in the matter by virtue of her being the executrix of
SD’s
estate.
[18] In terms of the Rules, it is only
the following who, upon the death of a member, are legally entitled
to the death benefit:
1. the member’s dependent; 2. a nominee
designated as such in writing by the member; 3. the member’s
estate in the
event of there not being a dependent or designated
nominee; 4. the Guardian’s Fund if the Master of the High Court
has not
received an inventory in respect of the member’ estate.
The applicant was not dependent on SD during his lifetime nor was
she
nominated as a beneficiary.
[19] The applicant only disclosed her
status as the executrix of the estate in her replying affidavit
following a challenge to her
right to institute this application.
The general rule is that new matter cannot be introduced in reply.
See The Master v Slomowitz
1961 (1) SA 669
T at 673H-674 A. In
Slomowitz, Jansen J recognized that there were exceptions to that
general rule. Also, in terms
section 3
of the
Law of Evidence
Amendment Act 45 of 1988
, a Court is permitted to admit hearsay
evidence if it is of the opinion that it is in the interests of
justice to do so, having
regard, inter alia, to the nature of the
proceedings.
[20] The applicant introduced herself
as the executrix of SD’s estate in a letter to the third
respondent dated 8 April 2015
when she requested the third respondent
to subject the first respondent and the minor child to DNA tests.
This was months before
the launch of this application. The
applicant’s failure to state in her founding affidavit that she
was also bringing this
application in her capacity as an executrix is
in my opinion not fatal. The applicant was, in fact and in law,
already an executrix
when she brought the application, having being
appointed to that position on 26 March 2015. I therefore consider it
to be in the
interest of justice, given the nature of the matter and
the probative value of that evidence, that the hearsay evidence
regarding
her status as executrix be admitted.
[21] SD did not designate a nominee to
either share or to be the sole beneficiary of the death benefit.
Consequently, if it is found
that SD is not the minor child’s
father, the death benefit falls to his estate in terms of the Rules.
In the light of the
above, I find that the applicant has, as the
executrix of SD’s estate, sufficient interest in the matter and
thus the requisite
locus standi to bring this application. It is
therefore not necessary for me to consider the contention that the
applicant is not
a complainant in terms of the Rules and consequently
lacks the right to institute these proceedings. I now turn to
consider the
first respondent’s second attack.
WAS A REVIEW APPLICATION MORE
APPROPRIATE IN THIS MATTER?
[22] Given that I have found that the
applicant has an interest in ascertaining who the rightful
beneficiary of the death benefit
is, it was well within her right to
elect to bring this application instead of reviewing the third
respondent’s decision
to regard Z as the rightful beneficiary
of the death benefit. Mr Sebola, for the first and second
respondents, argued that the
applicant should have attacked the third
respondent’s decision to regard Z as the beneficiary rather
than to seek an order
subjecting the first respondent and the minor
child to DNA tests. It is correct that the third respondent views Z
as the beneficiary
of SD’s death benefit but that decision was
based on the evidence currently before it. However, because the third
respondent
allowed the applicant to furnish it with irrefutable proof
to the contrary, that decision is conditional upon the presentation
of such proof. This is what the applicant is attempting to do with
this application. The third respondent’s decision is therefore
clearly not final and thus not reviewable. I find no merit in the
contention that the applicant should have proceeded by way of
review
against the third respondent.
THE MERITS
[23] The first respondent also attacks
the application on the basis that the applicant has failed to
establish grounds to sustain
the relief sought and that there is no
legal basis for the first respondent and the minor child to be
subjected to the DNA tests
when SD himself had accepted Z as his
child up until his death. Moreover, so the contention continues, the
evidence relied on by
the applicant is hearsay that should not be
admitted by the Court and, in any event, irrelevant to the relief
sought.
[24] The applicant disputes the
contention that SD accepted the minor child as his up until his
death. There is also no evidence
to support this contention. The
first respondent’s averment that SD contributed to the minor
child’s maintenance, albeit
sporadically, and retained contact
with him until his death, has to be contrasted with the contents of
the affidavit by SD’s
friend. It is apparent from that
affidavit that SD’s love for Z and presumably financial
assistance ceased following the
first respondent’s refusal to
take the requisite tests to verify paternity, when the minor child
was approximately two years
old.
[25] It is trite that, in assessing
disputes of fact in motion proceedings, the Court will apply the
Plascon-Evans rule which was
restated and refined thus by the
Constitutional Court in In Rail Commuters Action Group above:
“Ordinarily, the Court will
consider those facts alleged by the applicant and admitted by the
respondent together with the
facts as stated by the respondent to
consider whether relief should be granted. Where however a denial by
the respondent is not
real, genuine or in good faith, the respondent
has not sought that the dispute be referred to evidence, and the
Court is persuaded
of the inherent credibility of the facts asserted
by an applicant, the Court may adjudicate the matter on the basis of
the facts
asserted by an applicant.”
As previously stated, the first
respondent’s responses to the applicant’s allegations
have been less than satisfactory.
Her responses consist of bald
denials which I do not find to be genuine or in good faith. The first
respondent also failed to avail
herself of the right to subject the
applicant and the deponents of the affidavits lodged in support of
the application to cross-examination
under Rule 6(5)(g) of the
Uniform Rules of Court. I am satisfied as to the inherent credibility
of the applicant’s factual
averments and find that the
applicant has established the requisite grounds for the relief she
seeks.
[26] A further argument advanced by Mr
Sebola is that there is no pending application to exhume SD’s
body for purposes of
conducting the paternity test and as a
consequence, the order prayed for would be incapable of achieving the
relief sought. The
contention being that, without access to the body,
the DNA tests would not prove that SD was the father. A supplementary
affidavit
by the applicant, to which an affidavit by a Laboratory
Manager at the National Health Laboratory Services was attached, was
handed
to me from the bar, addresses this issue.
[27] It would appear that at the
hearing of Part A of this application, the presiding Judge requested
information regarding the
scientific procedure and accuracy of tests
determining the paternity of a minor child in instances where the
father is deceased.
According to the deponent of that affidavit, who
describes herself as an expert in the field of Human Genetics, a
child inherits
half its DNA from its mother and the other half from
the father. The averment continues that, in instances where the
alleged father
is deceased, the most ideal scenario is to test the
mother, the child and both parents of the alleged deceased father. It
is further
averred that in the case of a male child, additional
testing of the Y chromosome, which looks at relatedness through the
male -
line would also be possible in which event a probability in
excess of 98% was possible. It is therefore clear that an acceptable
DNA test result is possible without resorting to the body of SD.
Based on the evidence from the official from the National Health
Laboratory Services, I find no merit in Mr Sebola’s contention
that paternity cannot be proved without access to SD’s
body.
[28] In a final attack, Mr Sebola
invoked the provisions of the Constitution contending that the relief
sought would infringe the
first respondent and the minor child’s
rights to privacy. It was consequently not in the best interests of
the minor child
to subject him to those tests. In reply, Mr Mabuda
referred me to several authorities where the Courts dealt with a
party who,
where the paternity of a child had been placed in issue,
refused to submit himself or herself or the child to a DNA test in
order
to ascertain that child’s paternity. Admittedly, those
authorities involved parents who were both alive and one of them had
initiated the legal proceedings. The present matter is
distinguishable in those respects. The legal principles though remain
appropriate
in this matter.
[29] Murphy J, in Botha v Dreyer {2008]
JOL 22809 T, after examining the law on compulsory blood or DNA
testing in parental disputes,
concludes at paragraph 42, that the
Court is clothed inherently and constitutionally with jurisdiction to
order parties to have
blood tests where it finds that the competing
rights and interests of the parties require the truthful verification
of paternity
by scientific methods. In arriving at that conclusion,
Murphy J agreed with the view adopted by Kotze J in M v R
1989 (1) SA
416
(O) that it was in a Court’s power to order an adult to
have blood tests because it was in the best interests of the child
that reliable information be obtained to gain clarity on the question
of paternity. A guardian was compelled to act in the best
interests
of the minor child even if doing so would be contrary to her own
interests. Murphy J also aligned himself with Kotze
J’s dictum
that, depending on the circumstances, and within reasonable limits,
the privacy rights of a non-consenting adult
must yield to the
demands of discovering the truth in the best interests of the
administration of justice. I agree.
[30] In the present matter, I am of the
view that the main reason why the relief prayed for should be granted
is that it will resolve
the issue of whether the minor child or the
estate is entitled to the death benefit. If there is a reasonable
possibility that
the estate might be entitled to the benefits, it is
the applicant’s duty as executrix to pursue the issue. The
second reason
is that it is in the minor child’s interest that
the issue of his paternity be resolved as the uncertainty of his
disputed
paternity will follow him for the rest of his life. He is
fast approaching the age where knowing and being accepted by the
paternal
side of his family will be important to his emotional
well-being both as a pubescent and later as an adult. If it turns out
that
SD was indeed his father, then he will get the chance to
interact with his paternal blood relatives. If the tests prove the
contrary,
then it is just as important that Z no long labour under
the impression that his father is deceased. He can then, hopefully
with
his mother’s assistance, cultivate a relationship with his
real father. For all of the above, I agree with Murphy J that the
relatively minor infringement of the first respondents and Z’s
privacy should not trump the discovery of the truth. Failure
to seek
the truth in circumstances such as these would not be in the best
interests of the administration of justice.
[31] I am of the view that a scientific
determination of the minor child’s paternity will be in his
best interest and that
the order sought by the applicant should be
granted.
[32] Both parties asked for costs in
the event of either of them being successful. The applicant has
achieved success. The general
rule is that a party which has achieved
substantial success is entitled to its costs. Nothing in the papers
or in Mr Sebola’s
argument persuades me to deviate from the
general rule.
[33] In the result, I order as follows:
1. The first respondent is ordered to
submit herself and her minor son, Z, to DNA tests for the purpose of
determining whether the
late SD is the biological father of Z within
30 (thirty) days of today’s date and which date must be
arranged with the applicant’s
attorneys of record;
2. The DNA tests shall be conducted by
a suitably qualified official in the employ of the National Health
Laboratory Services, Johannesburg
or at a similar facility.
3.The applicant is hereby ordered to
furnish copies of the results of the DNA tests to the respondent’s
attorneys of record
within 5 (five) days of such results becoming
available.
4. The applicant is ordered to pay the
costs of the DNA tests.
5. The first respondent shall pay the
costs of this application.
MP CANCA
Acting Judge of the High Court of
South Africa
Gauteng Local Division, Johannesburg
Appearances:
For the applicant: Mr Mabuda
Instructed by: Nomaswazi Maseko
Attorneys, Parktown.
For the first and second
respondents: Mr Sebola
Instructed by: Mmamahlola Rabyanyana
Attorneys, Pretoria.