MN v BN (210/2016) [2023] ZAFSHC 236; [2023] 3 All SA 809 (FB); 2023 (5) SA 519 (FB) (13 June 2023)

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[2023] ZAFSHC 236
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MN v BN (210/2016) [2023] ZAFSHC 236; [2023] 3 All SA 809 (FB); 2023 (5) SA 519 (FB) (13 June 2023)

FLYNOTE:
FAMILY
– Damages – Extra-marital affair – Ex-husband
claiming damages for maintaining child that was not his –

Basing claim on fraudulent non-disclosure – No legal duty on
one spouse to disclose the existence of an extra-marital affair
to
the other – Failure to disclose not fraudulent non-disclosure –
Furthermore the claim is contra bonos mores and
against public policy
– Action dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:  210/2016
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between:
MN
Plaintiff
and
BN
Defendant
CORAM:
VAN
ZYL, J
HEARD
ON:
12,
13 SEPTEMBER 2017;
12
DECEMBER 2017;
6,
7 MARCH 2018;
19
APRIL 2018;
14
JUNE 2018;
DELIVERED
ON:
13
DECEMBER 2018; 13 JUNE 2023
[1]
This trial dealt with misattributed paternity. I made the following

order on 13 December 2018:
“
The
action is dismissed with costs, including the costs of the
application for absolution of the instance, but excluding the
reserved
costs of 12 December 2017, which costs are to be borne by
the defendant.”
[2]
The reasons for the aforesaid order follow herewith.
[3]
The trial entailed a claim for damages by the plaintiff, who
is the
former husband of the defendant, who discovered after the parties’
divorce that he is not the biological father of
the youngest of three
children who were born during the subsistence of the parties’
marriage.
[4]
The identity of the parties is not revealed in order to protect
the
identity of the children concerned.
Background
and the pleadings:
[5]
The plaintiff and the defendant got married to each other on
8 May
1991.  During the subsistence of the marriage three daughters
were born, the youngest of whom, N, was born on 2 December
1997.
[6]
The parties were divorced on 7 February 2012 and they entered
into a
deed of settlement, which was also made an order of Court.
[7]
During or about February 2015 it was established through blood
tests
that N is not the biological child of the plaintiff.
[8]
In terms of the particulars of claim the plaintiff’s
claim was
pleaded as follows:
“
5.
The
plaintiff raised N under the impression that it [sic] is his own
child.
6.
…
7.
During
or about February 2015 it was established through blood tests that N
is not the child of the plaintiff.
8.
Up
to February 2015 the defendant represented to the plaintiff that N
was his child and that she had an exclusive sexual relationship
with
the plaintiff during the time that N was conceived.
9.
When
making the aforesaid representation the defendant knew it to be
false.
10.
Alternatively,
the defendant had a duty to disclose to the plaintiff that she had an
extra-marital affair during the time that N
was conceived.  Her
failure to inform the plaintiff hereof constitutes fraudulent
non-disclosure with the intention to deceive
the plaintiff.
11.
As
a result of the defendant’s misrepresentation, alternatively
fraudulent non-disclosure, the plaintiff took the responsibility
of
maintaining N and paid maintenance for N up to February 2015.
12.
As
a result of the defendant’s misrepresentation, alternatively
fraudulent non-disclosure, plaintiff suffered damages in the
amount
of R1 441 290.00, being the amount spent by plaintiff on the
maintenance of N.  The damages are calculated as set out
in
annexure “C” hereto.
13.
In
the premises defendant is liable to pay the plaintiff the amount as
aforesaid.”
[9]
In her amended plea, the defendant pleaded as follows in response
to
the relevant averments in the particulars of claim:
“
2.
AD
PARAGRAPH 5
The
content of this paragraph is noted.
3.
…
4.
AD
PARAGRAPH 7
The
content of this paragraph is denied.
5.
AD
PARAGRAPH 8
5.1
It is denied that the defendant represented to the plaintiff that N
is his child.
5.2
The defendant pleads that both parties acted under a mutual
impression that the plaintiff
is N’s father.
5.3
The averment that the defendant represented that she had an exclusive
sexual relationship
with the plaintiff is noted.
6.
AD
PARAGRAPH 9
The
content of this paragraph is denied.
7.
AD
PARAGRAPH 10
7.1
The content of this paragraph is denied.
7.2
The defendant pleads that both parties acted under a mutual
impression that the plaintiff
is N’s father.
8.
AD
PARAGRAPH 11
8.1
It is denied that the defendant misrepresented, or fraudulently
failed to disclose, relevant
information to the plaintiff.
8.2
It is admitted that the plaintiff maintained N.
8.3
The defendant pleads that both parties acted under a mutual
impression that the plaintiff
is N’s father.
9.
AD
PARAGRAPH 12
The
content of this paragraph is denied.
10.
AD
PARAGRAPH 13
10.1
The content of this paragraph is denied.
10.2
…
11.
…
12.
The
plaintiff’s claim is
contra
bonos mores
as it adversely
affects, alternatively strains, alternatively destroys the loving and
caring parental relationship between the plaintiff
and the
plaintiff’s child N and/or the other plaintiff’s children
[
sic
].
13.
The
plaintiff’s claim as aforementioned, infringes the values of
human dignity, the achievement of equality and the advancement
of
human rights and freedom and has the tendency to destroy the
otherwise loving and caring parental relationship with the child
N
whose rights to family and parental care are protected under section
28 of the Constitution.”
[10]
In response to the defendant’s amended plea (paragraphs 12 and
13 of the plea) the plaintiff filed a replication.  I deem it
apposite to record the totality thereof herein:
“
1.
AD
PARAGRAPH 12
1.1
It is denied.  Defendant’s conduct as set out in
paragraphs 5 –
12 of plaintiff’s particulars of claim
caused the plaintiff, the other minor children, N and her biological
father to falsely
believe that plaintiff is the father.
1.2
The defendant’s conduct was unlawful, and/or
contra
bonos mores,
and/or not in the best interest of N.
1.3
Defendant, in her own interest, refused and continuous to refuse to
disclose
the true facts to plaintiff.
1.4
N is entitled to demand maintenance primarily from her true
biological father
as provided for in section 21(2) of the Children’s
Act, 38 of 2005.
1.5
N is entitled to know the true identity of her biological father.
1.6
Public policy does not negate and/or outweigh recognition of the
plaintiff’s
rights and cause of action.
2.
AD
PARAGRAPH 13
2.1
It is denied.  Plaintiff repeats the contents of paragraph
1,
supra
.
2.2
Section 36 of the Constitution of the Republic of South Africa, 1996
provides
that rights may be limited to the extent that the limitation
is reasonable and justifiable in an open and democratic society based

on human dignity, equality and freedom.
2.3
Plaintiff is entitled to the right of limitation of his obligations
and freedom
from unfounded demands and claims for maintenance.
2.4
The defendant and the natural father are responsible for N’s
maintenance.
2.5
Plaintiff is entitled to equal treatment before the law by holding
defendant
accountable for losses suffered due to defendant’s
conduct as pleaded.
2.6
Plaintiff is entitled to be treated with dignity which was infringed
by defendant’s
disrespectful conduct in falsely claiming
plaintiff to be the father.”
Summary
of the evidence:
[11]
At the commencement of the trial the parties indicated that they have

agreed that the
quantum
and merits be separated and
that the merits be adjudicated first. I consequently granted an order
in terms of Rule 33(4) and
ordered accordingly.
[12]
It was further indicated by the parties that the DNA results are not
disputed.
The
plaintiff`s evidence in chief:
[13]
The plaintiff used to work for the Department of Education.  He
subsequently resigned and was in the employment of the Department of
Correctional Services for 20 years.  Thereafter he resigned
and
was recruited by a private prison, where he is currently still
employed as the managing director of the company which owns
the
prison.
[14]
The plaintiff and the defendant met at the university where they both

studied.  The defendant studied Social Science and went on to
become a social worker.
[15]
The plaintiff testified that it was his first marriage.  They
discussed
family planning and he stated upfront that he only wants
one child, not more than one.  However, eventually there were
three
daughters born from the marriage, in 1991, 1994 and 1997,
respectively.
[16]
After their second child was born, the plaintiff raised his concern,
since he previously stated that he only wanted one child.
According to the plaintiff the defendant explained that she used
a
slimming mixture “
which washed away the contraceptives
”.
According to the plaintiff he accepted the fact that they then had
two children.
[17]
After the birth of the third child, N, he again raised his concern
regarding
the fact that they now had three children.  According
to the plaintiff the defendant again gave the explanation that the
slimming
mixture “
washed away the contraceptives
”.
[18]
The plaintiff testified that throughout their marriage nothing was
said
by the defendant indicating that N was not his child.
According to the plaintiff the defendant created the impression that

all three children were his biological children.
[19]
The plaintiff testified that when he learned that N was not his
biological
daughter, he was emotionally and psychologically
shattered.  According to him he brought her up like his own,
sacrificing
things that he could have done for himself.
[20]
The plaintiff explained that he was an illegitimate child and was
brought
up by his mother and stepfather.  He only found out that
his stepfather was not his biological father approximately two years

before the date of his evidence.  He was informed by his
mother’s elder sister who his biological father is and where
he
originated from.  The plaintiff had a desire to know his
biological father.  He went to look for him, only to be informed

that his biological father had passed away approximately two years
before then.
[21]
The plaintiff testified that he and his mother are not on speaking
terms.
The last time he saw her was about two to three years
before the date of his evidence.  He has no contact whatsoever
with
her.  He explained that he cannot subpoena his mother to be
a witness, since she and the defendant share many secrets.

According to the plaintiff his mother will consequently be a hostile
witness.  His mother also never told him who his biological

father is.  He was brought up in a family in which he thought he
belonged, but, according to the plaintiff, he was living
a lie. He
does not wish this on anybody.
[22]
The plaintiff testified that at some stage the pastor’s wife
wanted
to adopt their middle child.  She had a medical condition
and could not have a child of her own. The pastor`s wife, however,

unfortunately passed away.
[23]
The plaintiff also testified that the pastor took the defendant to
hospital
for the delivery of N, as he, the plaintiff, was at work and
he was also unaware that she was due for the delivery of N at that

time.  After the delivery the pastor fetched her from hospital
again.  When the plaintiff returned home after work, he
found
the defendant at home with the baby and when he enquired from her who
brought her back from hospital, she responded that
it was the
pastor.  According to plaintiff, had the defendant phoned him
and told him that she had to go to hospital or that
she had been
discharged and had to be fetched from hospital, he would have been
able to take her to and fetch her from hospital.
[24]
The plaintiff gave certain evidence with regard to alleged
conversations
which took place between the pastor’s wife and
his mother.  However, since this evidence constituted hearsay
evidence,
it was disallowed.
[25]
After the DNA results became known, the plaintiff went back to his
mother
enquiring from her why she did not inform him of the
defendant’s infidelity.  The plaintiff explained that the
defendant
was very close to the pastor of their church which they all
attended and that their close relationship was common knowledge. He

therefore wanted to enquire from his mother whether she knew about
the relationship between the defendant and the pastor.
Although
the defendant testified about what her response was, same constituted
hearsay evidence and was also disallowed.
[26]
According to the plaintiff fidelity was very important to him –

there was no room for infidelity in their marriage.
[27]
The plaintiff testified that had he known at the time of N’s
birth
that he was not her father, he would have walked away from the
marriage.
[28]
During the divorce it was agreed in the settlement agreement that
permanent
residency of the two younger children who were still minors
at the time was awarded to the defendant until the end of the
academic
year of 2012, where after they were to permanently reside
with the plaintiff. This arrangement was due to the fact that he
could
not take the children with him in the middle of the academic
year.  For the time period the two minor children were to reside

with the defendant, the plaintiff was to pay monthly maintenance
towards them in the amount of R2 000.00 per child.  He also

bought a car which the defendant and the eldest daughter could use
for transport.
[29]
However, the defendant, according to the plaintiff, went behind his
back
to the Maintenance Court and sought a 100% increase in the
maintenance.  Such an order was granted by default.  It was

at the time when he applied for rescission of the default maintenance
order that he requested a paternity test pertaining to N.
[30]
The plaintiff explained that N had a medical condition which was not
in the health history of their family.  Her features were also
different to those of their family.  She used chronic
medication, which he also paid for. He was paying more maintenance
than he was originally ordered to do, since he wanted peace of
mind
that they were well cared for. Therefore, when the defendant applied
for an increase in maintenance in those circumstances,
he decided to
request the paternity test, which decision he took with a heavy
heart, since he did not want to upset the children.
[31]
The plaintiff testified that he would have filed for divorce had he
known
about the defendant’s infidelity.  According to him,
he always told the defendant that should she be unfaithful to him,
he
would file for divorce.
[32]
According to the plaintiff the defendant used to be employed, but at
some stage she resigned and became self-employed.  He further
testified that during the marriage he maintained the children.
He ran
the household, bought groceries and paid for everything. The
defendant used her salary/income for her personal purposes.
[33]
The plaintiff testified that his wish for N is that she should not
find
herself in the same position he did by not knowing her roots.
He testified that at the time of his evidence she was about
20 years
old.  He did not inform N about the outcome of the DNA tests,
since he left it to the defendant to tell her.
[34]
The plaintiff testified that he now also has a question mark with
regard
to the paternity of the other two children. According to the
plaintiff, after the first postponement of the trial, there was an

agreement that the other two children will also undergo DNA tests.
The plaintiff’s legal team wrote emails in an attempt
to
arrange the DNA testing. The plaintiff testified that N then wrote an
email in which she indicated that she did not want to
undergo DNA
testing since she knows who her biological parents are.
[35]
The plaintiff explained that all three children have since been
living
with the defendant and that there is no meaningful
communication between him and the children.  He has since
re-married and
he and his second wife made effort to meet with the
three children and to rekindle a relationship with them.  He was
planning
on buying a property where all three children could stay,
but they were not interested in re-establishing a relationship with
him,
nor in his suggestion with regard to the property.
[36]
After the birth of the third child the defendant continued using
contraceptives,
although the plaintiff is not sure whether she
continued using the same contraceptive.
[37]
The plaintiff testified that up to the day of his evidence, the
defendant
has not yet told him directly that N is not his child.
[38]
He never confronted the plaintiff with regard to her relationship
with
the pastor, since it was only after the divorce that everything
became more clear to him.  He did not have any communication

with the defendant after their divorce, although she remained close
with his mother.
Cross-examination
of the plaintiff:
[39]
This part of the judgment deals with the cross-examination of the
plaintiff
and I will consequently not repeat indicating as such in
this part of the judgment.
[40]
The plaintiff confirmed that he studied education and that he worked
as an educator at a high school with children between the ages of 14
and 18 years old. He also confirmed that it is the duty of
parents to
protect their children and to care for them.
[41]
The plaintiff testified that the discussions he had with the
defendant
regarding family planning occurred before they got
married.  As father he was happy when the children were born,
but, according
to him, the defendant breached their agreement to only
have one child.
[42]
Several questions were posed to the plaintiff with regard to the fact

that he does not want to call his mother as a witness.  He gave
a number of explanations in respect of this issue and testified
that
he is not ready to speak to her again.  The last time he spoke
to her was after the DNA results were received.
[43]
The plaintiff was questioned about what he meant when he testified
that
if it had not been for the obligation to maintain N, he could
have done more for himself.  He explained that all parents
attempt
their best to care for their children.  According to him
the three children born from the marriage grew up in better
circumstances
than many other children.  They went to the best
schools, he provided cars to them when they went to university and he
maintained
them on a medical fund.  Therefore, the money which
he spent on N in this regard, he could have spent on himself.
[44]
When the plaintiff was asked why he only wanted one child, he
responded
by stating that “
that is what I wanted
”.
It was put to him that the defendant did not agree to having only one
child, which he denied.
[45]
It was put to the plaintiff that the reason he only wanted one child
was because he wanted to adopt his youngest sister who was two years
old at the time and whom they took in before their first child
was
born. He denied same. He explained that his mother fell pregnant with
his youngest half-sister only a year after she gave birth
to his
younger sister.  He wanted to alleviate the workload of his
mother and therefore he and the defendant took her in and
brought her
up as a sister to their other children. When asked why he did not
mention this aspect of having taken in his youngest
sister in his
evidence in chief, he testified that there was no reason to have
mentioned it. He explained that it is common knowledge
that African
families take care of their extended families and therefore it was
his responsibility to take care of her in the circumstances.
[46]
It was put to the plaintiff that after the birth of the first child,
the defendant developed migraines and she was prescribed antibiotics,
which had an influence on the effectiveness of her contraceptives.

The plaintiff denied same.  It was further put to him that after
the birth of the second child, the defendant started making
use of
injections as contraceptive, but because she gained weight as a
result thereof, she started using a slimming mixture.
The
plaintiff testified that he does not know what contraceptives she
used, but he confirmed that she did drink a slimming mixture
from
time to time.
[47]
It was put to the plaintiff that before the birth of the second
child,
he asked the defendant to undergo an abortion.  The
plaintiff responded that he was not happy with having a second
child.
The issue of an abortion might have come up in their
discussions, but that he cannot remember it. It was further put to
him that
he also wanted the defendant to undergo an abortion with her
third pregnancy.  The plaintiff responded by stating that the

defendant deviated from what was agreed upon between them with regard
to the number of children they were to have, but that he
does not
remember telling her to undergo an abortion.
[48]
The plaintiff was referred to paragraph 10 of the particulars of
claim
where it was pleaded that the defendant had a duty to disclose
to the plaintiff that she had an extra-marital affair during the
time
that N was conceived. The plaintiff was asked whether it is part of
his case that the defendant had an extra-marital affair.
The
plaintiff responded that the respondent did have an extra-marital
affair but that he did not know about it at the time.
[49]
The plaintiff was questioned on the issue he had with the pastor.

He was asked whether it is his case that the defendant had an
extra-marital affair with the pastor or whether that is just his

suspicion. He explained that the defendant’s relationship with
the pastor was too close.  He also testified that one
weekend
the defendant went away and that they found her at her mother’s
house in Mafikeng with the pastor.  However,
when questioned
whether he confronted the pastor, he answered in the negative.
When asked why not, considering all the information
he had, he
testified that he only received the information after the DNA
testing. He did not want to confront the pastor merely
based on a
suspicion.  He wanted proof and evidence.  The plaintiff
also testified that he does not know whether the
defendant might have
had other extra-marital affairs as well at that stage.
[50]
When asked why he did not appoint a private investigator to follow
the
defendant, the plaintiff testified that he did not think about it
and that he expected his wife to be faithful.
[51]
It was put to the plaintiff that he also has other children who were
born out of wedlock and of whom he is the father.  In response
the plaintiff testified that due to difficulties which he had
with
the defendant, he transferred to KwaZulu-Natal (“KZN”).
There he met a lady and she fell pregnant.  He explained
that he
came clean in that he discussed the pregnancy with the defendant, his
mother and the family and that he/his family paid
child damages for
having impregnated the lady.
[52]
The plaintiff further testified that he has another child in Pretoria

who was born in 1998.  He further confirmed the fact that N was
born in December 1997, whilst his child in Pretoria was born
in
January 1998. They had therefore been conceived approximately a month
apart.
[53]
It was further put to the plaintiff that according to the defendant
the
plaintiff has two other children who were born in 1999 and 2001
respectively.  The plaintiff denied same.  He testified

that the lady, Kelly, had one child during late 1999, but that she
told him that he was not the father of the child.  The
lady has
unfortunately since passed away. The plaintiff, however, conceded
that they had been intimate whilst he was married to
the defendant.
[54]
The plaintiff was questioned on the fact that he testified that
according
to him there was no room for infidelity in their marriage,
but he himself participated in acts of infidelity.  The
plaintiff
responded that the marriage was already damaged at that
stage.  He filed for divorce after their second child was born.
[55]
During the next part of the cross-examination a scenario was posed to

the plaintiff with regard to his evidence that had he known earlier
that N was not his child, he would have divorced the plaintiff.

He was asked whether he would have done so even at the stage when N
was only 10 or 11 years old, which he confirmed.  When
asked
whether he would then also have instituted a claim for the repayment
of the maintenance which he had paid up to that stage,
he testified
that if he had known the identity of the biological father, he would
have asked the money from the biological father.
However, he
testified that he then, in those circumstances, would also have
wanted visitation rights with regard to N, because
it was not her
fault that the situation occurred.  The plaintiff also confirmed
that whenever N would have visited him in
those circumstances, he
would have maintained her during her visits by feeding her, pay for
any medical emergencies and also by
buying clothes for her.  He
further confirmed that if N had a medical emergency under those
circumstances whilst she was with
the defendant, he would have paid
for such medical emergency if he was requested to do so.  If he
was to be asked to buy her
school clothes, he would have assisted if
he was able to do so.  When asked whether he would have done so
because he would
still have regarded her as his child even though not
by blood, he answered “
yes, because I considered her as a
sister to my other children
”.  The plaintiff also
testified that he would have loved her as his own child, but that he
would not have been under
an obligation to maintain her.
[56]
Still with regard to the scenario of the plaintiff having divorced
the
defendant at the time when N was 10 or 11 years old, he testified
that if the biological father would have been in the picture at
that
stage, it would have been his responsibility to maintain N.
However, he also confirmed that he would have assisted N
financially
if her biological father was unable to do so.  He qualified it
by testifying that he would have done so on humanitarian
grounds and
not because he was under any obligation to do so.  When asked
whether he would have done it only on humanitarian
grounds or because
he loved her, he testified that “
I brought her up as my
child, I would still have loved her as a child
”.
[57]
The plaintiff was asked whether he would financially assist even now
should N experience a medical emergency, the plaintiff testified that
he would assist her like he would any other child. He was
asked
whether he would do it because he still considers N to be his child,
the plaintiff testified that he would help her because
she would be a
child who needs help, if he has the means to do so. He, however,
testified that he does not have the means to put
any child through
university.  When asked whether he will assist N in this regard,
he testified that he will do so like he
would with any other child.
[58]
The plaintiff was
asked whether he would buy N a birthday present that coming
December,
to which he responded that should he have the means, he would do
so.
[59]
The plaintiff was asked when he decided to request the paternity
test,
to which he explained that it was when the defendant decided to
approach the maintenance court to apply for an increase of 100%
in
the amount of maintenance which he was to pay.  Default judgment
was granted and in the process of him having that judgment
rescinded,
he decided to ask for a paternity test. When asked whether he decided
to do that because he did not want to pay maintenance,
the plaintiff
responded in the negative, stating that he was already paying more
than that in any event.
[60]
The plaintiff was asked when he first noticed that N had different
features.
He responded that he cannot put his finger on it,
since it was an ongoing process. However, at 5-years old she was
taller
than the average 5-year old and he also noticed that her ring
finger was longer than her middle finger. When asked why he had not

at that stage already requested a paternity test, he testified that
he did not want to upset N by having such a test done.
[61]
The plaintiff also testified that had the defendant not gone to court

behind his back in order to have the maintenance increased, he would
have continued to maintain N.
[62]
The plaintiff was
confronted with the fact that despite turbulent times in their

marriage when he filed for divorce after the birth of their second
child and later the different features of N which he noticed
at
5-years old already, he never asked the defendant whether she was
having or had an affair.
[63]
When asked how, according to the plaintiff, the defendant committed
fraud,
he testified that she knew that he was not the father of N,
she knew who the father was and she did not say anything.
[64]
With regard to his own extra-marital affairs, the plaintiff was asked

whether he came clean about them, to which he responded that he did
discuss it with the defendant.
[65]
It was put to the plaintiff that the defendant will testify that she
had no extra-marital affair with the pastor and that there had not
been any intimacy between them.  He responded that the defendant

is the only one who knows whom she slept with, but when he asked her
for full disclosure, she refused.
[66]
It was further put to the plaintiff that the defendant will testify
that
she had a “
one-night stand
” with a man, after
the one-night stand she never had contact with that man again and
that after the one-night stand, she
was also intimate with the
plaintiff again.  She was consequently under the impression that
N was the plaintiff’s child.
The plaintiff responded that
she will be cross-examined about it and that she could not have been
under the impression that it
was his child since she was also
intimate with another man.
[67]
When referred to his evidence that he decided with a heavy heart to
have
the DNA test done because he knew what impact it will have on N,
he confirmed same, but testified that N was also entitled to know
the
truth.  He explained how bad it was for him to have grown up
with a person whom he thought was his biological father,
who turned
out not to be.
[68]
When asked whether he had a discussion with N prior to the DNA test
being
done, the plaintiff testified that he fetched her from school
and explained to her that a DNA test was to be done.  He,
however,
never discussed the results with N, since he left it to the
defendant to tell her.  According to him it was the defendant
who was unfaithful and should N have had any questions, the defendant
would have known the answers to the questions.
[69]
The plaintiff was asked why the pastor would have approached them to
adopt a child instead of having approached an adoption agency. The
plaintiff explained that in the African culture it often happens
that
a family or a person in the community will be approached to adopt a
child from that family or person, because a child is considered
to
belong to the community. According to the plaintiff they had no
further discussion regarding the request to adopt, since the

plaintiff and the defendant simply refused the request.
[70]
It was put to the plaintiff that he was the one who approached the
pastor’s
wife before the birth of N with the offer that she
could adopt N, which he denied.
[71]
With regard to their finances, it was put to the plaintiff that the
defendant
also contributed to the payment of their expenses. The
plaintiff denied same.
[72]
With regard to the email which N wrote, the plaintiff testified that
N wrote that she knows who her parents are. It was put to the
plaintiff that in terms of the email, N regarded the plaintiff as
her
father. The email was handed in as exhibit “A”.
[73]
During further cross-examination the plaintiff testified that he was
at work in Pretoria when the defendant went into labour with their
first child.  He also did not go with the defendant to the

doctor with her first pregnancy, since he had to work. According to
him he was not informed about her specific due date, he only
had an
estimate thereof.  The pastor took the defendant to hospital and
also fetched her from hospital with the birth of their
first child.
The plaintiff also testified that in the African culture, with the
birth of the first child, the wife`s mother would
normally come to
assist with the process. The defendant`s mother did indeed come to
them prior to the birth of their first child.
It was put to the
plaintiff that according to the defendant he was working in KZN at
the time, to which the plaintiff testified
that he was working both
in Pretoria and KZN at the time and that he can`t specifically
remember where he was at work when the
defendant gave birth, but if
he had been informed, he could have taken leave.
[74]
With regard to the birth of their second child, the plaintiff
testified
that he again did not know the due date of the child`s
birth and that he did not enquire about it either, because he had the
right
to be told. He was consequently at work when the defendant went
into labour and the pastor took the defendant to hospital. It was
the
same with the birth of their third child.  It was put to the
plaintiff that the defendant will testify that the pastor
did not
take her to and fetched her from hospital with the birth of all three
of the children, which the plaintiff denied.
[75]
The plaintiff denied that he and the defendant were both close to the

pastor. According to him he was not the one who asked the pastor to
take the defendant to hospital and to fetch her again. However,
the
plaintiff did not speak to the pastor about having done so without
his permission.
[76]
It was put to the plaintiff that his claim for repayment of the
maintenance
was designed to get back at the defendant because of her
extra-marital sexual encounter, despite it being to the detriment of
N.
The plaintiff denied this.
Re-examination
of the plaintiff:
[77]
During the re-examination of the plaintiff he testified that they
took
in his youngest sister to raise even before they had their first
child and that she was not a substitute for having a child of their

own.
[78]
The plaintiff was asked whether he is maintaining his child who lives

in KZN, which he confirmed.
[79]
When asked what he meant by “
humanitarian reasons
”
in his cross-examination, the plaintiff explained that he is not the
biological father of N. Although N does have a biological
father and
mother, he will assist her like he would any other child.
However, for his own biological children he will sacrifice

everything, but not for a “
community child
”.
[80]
With regard to his extra-marital affair the defendant had in KZN, he
was asked what he meant by testifying that he “
came clean
”.
He testified that he came forward and revealed the relationship and
the pregnancy to his family and the defendant.
He explained
that there was a procedure involved which was followed where the
parents and the uncle were involved and damages were
paid. According
to the plaintiff the defendant consequently had the choice whether to
stay in the marriage or whether to divorce
him.  He told her
about the relationship so that she could make an informed decision.
[81]
At the end of the re-examination, the document which reflects the
paternity
test results was handed in as exhibit “B”.
[82]
That concluded the case for the plaintiff. The trial was then
postponed.
Application
for absolution from the instance:
[83]
When the trial continued on the next date, the defendant applied for
absolution from the instance, which I dismissed. I will return to
this aspect.
The
defendant`s evidence in chief:
[84]
The defendant testified that she resides in Mafikeng and is employed
as a social worker at a wellness centre.
[85]
At the time of her evidence the three daughters born during the
subsistence
of the parties` marriage were 26, 23 and 20 years old
respectively.
[86]
According to the defendant the plaintiff did mention that he wanted
only
one child, because at that stage they had already taken in the
plaintiff’s youngest sister. The plaintiff pleaded with her

that they take in his youngest sister, because she was the sixth
child born in the family. The defendant, however, did not consent
to
having only one child.  The defendant testified that she
indicated to the plaintiff that she wants two of their own children,

so that there would be three children including the plaintiff’s
sister.
[87]
After the birth of their eldest daughter, the defendant used
contraceptive
pills.  In 1993 she was admitted to hospital for a
period of two weeks, where she was administered antibiotics for
severe
migraine headaches.  Two months later she started feeling
sick and went to the doctor, who advised her that she was pregnant

with their second child.
[88]
The plaintiff enquired from her how it could have happened that she
fell
pregnant again.  They went to their family doctor and she
explained to both the plaintiff and the defendant that the
antibiotics
could have “
washed the contraceptives out of her
system
”.
[89]
The plaintiff was furious. He said to the defendant that he told her
that did not want another child.  He told the defendant to
undergo an abortion and if not she should choose between their
marriage and the baby.  She indicated that she chooses the baby,
which led to them fighting throughout her pregnancy.
[90]
With regard to the circumstances surrounding the birth of their
second
child, the defendant testified that the plaintiff knew the
date when she was due to give birth. Prior to her going into labour,

the plaintiff went to work in Rustenburg.  She came down with
flu and did not go to work. The plaintiff called the pastor
and
requested him to take her to their family doctor.  After she
visited the doctor, the pastor took her home again.
Later the
same day she felt as if she was going into labour, which she told the
plaintiff when he phoned to hear what the doctor
said. The plaintiff
phoned the pastor’s wife and asked her to tell the pastor to
take the defendant to the hospital, which
he did.  During that
night the defendant gave birth to their second child.  The
plaintiff did not come to see her and
their child in hospital.
Both the plaintiff’s mother and the defendant’s mother
were there and they informed
the plaintiff on the day that the
defendant and their baby were to be discharged.  The plaintiff
again requested the pastor
to take her home.
[91]
After the birth of the second child the defendant decided, after
having
a discussion with their doctor, that she will use an injection
as contraceptive.
[92]
The plaintiff at that stage filed for divorce, again saying that she
should choose between their marriage and the child.  She
received the summons the first day after she returned back to work

after her maternity leave.  However, after they reached a
settlement with regard to the divorce and after the plaintiff
involved
their parents, the pastor and the pastor’s wife, the
plaintiff decided to cancel the divorce proceedings.
[93]
The defendant testified that she met a man from Witbank, AM.
She
met him at Kroonstad College, where she went for training, which
training was presented by AM.  They became friends. Some months

later AM had to come to Pretoria for a business meeting on a
particular Monday.  He phoned her and asked to meet with her

after work.  The weekend preceding that Monday the plaintiff was
at home, although he was working in Pietermaritzburg at that
stage.
That Monday after work she met with AM at the Wimpy at Sterland in
Pretoria at about 18h00.  Whilst they were
there, AM’s car
was stolen from the undercover parking area. The defendant
consequently had to take him to the police station
to report the
matter.  AM would have driven back to Witbank that same evening,
but due to the theft of his car, he had to
sleep over at a Formula 1
Hotel.  The defendant drove him to the hotel.  She
testified that she was in a vulnerable state.
They sat in the
hotel room trying to figure out how he was going to get back to
Witbank the following day.  The plaintiff
testified that
“
unfortunately we slept together, I was intimate with him
that night
”.
[94]
She left him at the hotel, since she had to go home.  He took a
taxi back home to Witbank the following day.  That was the last
time she saw him.  They spoke over the phone for a week
or two
after the incident.  She explained that she was following up on
what was happening with regard to the car.  Thereafter
they
completely stopped contact.
[95]
The defendant testified that when she had sexual intercourse with AM,

she was still using her contraceptive and AM also used a condom.
[96]
At that stage the defendant and the plaintiff still had a sexual
relationship.
The Sunday preceding the relevant Monday, before
the plaintiff went back to Pietermaritzburg, the plaintiff and
defendant also
had sexual intercourse.
[97]
Some time after that, the defendant wanted to have a sterilisation
done,
only to find out that she was pregnant with N.  The
defendant discussed the fact that she was pregnant with the
plaintiff.
He insisted that she undergoes an abortion.
They agreed accordingly. The defendant made an appointment for the
abortion at
the Steve Biko Hospital.  The plaintiff also came
back from Pietermaritzburg for purposes of the abortion.  The
night
before the defendant was due to undergo an abortion, tidhey had
to go for pre-abortion counselling.  The plaintiff did not
go
with her, despite the fact that he was home. She had to go on her
own. The following morning, the plaintiff woke her up and
told her
that they should go to the hospital for the abortion.  The
defendant refused.  She told him that she was not
going to have
an abortion and that she is keeping the child.  She told him
that because he did not want to go with her the
previous night, it
appears as though the abortion was only her issue and not the issue
of both of them.  The defendant explained
in court that the way
in which she knew the plaintiff, she was scared that he will later
say that she killed the child or that
she had her own reasons for
having undergone the abortion.  He again told her that she
should choose between the child and
their marriage.  They did
not go to the hospital. The plaintiff was furious and left home. The
defendant assumed that he went
back to Pietermaritzburg.
[98]
According to the defendant the plaintiff was not involved with the
pregnancy.
He only came home every two weeks.  The
plaintiff again left for work on a particular Sunday and on the
Monday the defendant
started feeling some pain.  On the Tuesday
a family friend of theirs, who lived in the same block of flats, took
the defendant
to hospital where she gave birth to N.
[99]
During the weekend before the plaintiff left for work on the Sunday,
he told the pastor’s wife that the plaintiff and the defendant
agreed to give N to them for adoption after her birth, because
they
could not have children. The defendant explained in court that this
came to her knowledge, because the pastor’s wife
phoned her,
very excited about the adoption.  The defendant told her that
she and the plaintiff will have to discuss it, because
she (the
defendant) had not agreed to such an arrangement.
[100]
The morning after the birth of N the plaintiff phoned the defendant
at hospital
and said that he hopes that the defendant has not yet
bonded with N.  He told her that because she is refusing that
the pastor
and his wife adopt N, the defendant must leave N at the
hospital, she should not bring her home.  The defendant told the
plaintiff
that she decided to keep the baby and that she is going to
bring her back home.
[101]
According to the defendant whilst N was growing up, she looked like
the defendant,
although a bit taller.  She still looks like the
defendant.  The plaintiff never confronted her about the
possibility
of N not being his biological daughter.
[102]
The defendant testified and agreed that the plaintiff provided in all
her needs
and also the needs of the children.  With regard to
household expenses and the running of the household, they both
contributed
worked together.
[103]
The defendant testified that she had no extra-marital sexual
relationship with any
other person than the one-night stand with AM.
[104]
The defendant testified that she did not consider the possibility
that AM may be
the father of N, because they used a condom.  She
explained that if she had thought that N was AM’s child, she
thinks
that she would have embraced the idea of an abortion in order
“
to get away with the situation
”.  She was
shocked by the DNA results, because “
I knew him (the
plaintiff) to be the father. I did not give a false representation.
”.
[105]
The defendant testified that the plaintiff loved all their children,
including N.
Whenever N played alone and the defendant would
tell her to play with the other children, the plaintiff would tell
the defendant
to leave N alone, since she is like him, even her tone
of voice is like his.  Despite the fact that he did not want the
last
two children, the plaintiff loved them and provided for them.
They went to good schools.  In the final divorce action,
he even
claimed that the primary residence of both the said two children who
were still minors at the time (which included N),
be awarded to him.
[106]
With regard to the impact the DNA results had on them, the defendant
testified that
although she does not know why, the plaintiff stopped
communicating with all the children even prior to the DNA test.
He
even took back the car which he bought for the eldest daughter in
terms of the divorce settlement agreement.  The defendant

testified that at the time when she presented her evidence, he was
having no relationship with any of the children.  His change
of
attitude shocked all of them, because, according to the defendant, he
used to take excellent care of all three children.
[107]
The defendant testified that she found out about the plaintiff`s
first extra-marital
affair in 1994 when he filed for divorce the
first time. She went to his place of work. The plaintiff and
defendant work in the
same department, so his co-employees knew her.
In his office the defendant found photos of and cards from the lady.
The defendant
took the photos and cards, but kept quiet about it.
[108]
With the first divorce and after the parties reached a settlement the
matter was
enrolled on the court roll.  The evening before the
divorce was due to be heard in court, the defendant took out “
all
the evidence
”, referring to the cards and the photos.
According to her the plaintiff was shocked.   He pleaded
with her
that they should work out their relationship. The defendant
testified that the plaintiff and this lady has a son who was born in

2001, which means that the plaintiff had continued with the
relationship since 1994.
[109]
The defendant also testified about the other extra-marital
relationship of the plaintiff
with a lady from Pietermaritzburg.
According to the defendant the plaintiff had this relationship whilst
she was pregnant
with N.  This is evident from the fact that N
was born in December 1997 and the child of the plaintiff with the
lady from
Pietermaritzburg was born on 24 January 1998. The defendant
explained how she found out about this relationship. At that stage
the plaintiff refused that the defendant also takes a transfer to
Pietermaritzburg. One day she went to visit him in Pietermaritzburg

without his prior knowledge, although he had to come and fetch her at
the bus station. When she got to the place where he was staying,
she
realised that a woman was also staying in that house, but the
plaintiff denied it. When the defendant returned to Pretoria,
she did
her own research and found out what the name of the lady was. She,
however, initially kept quiet about it.  When she
later
confronted him with the information, he acknowledged that he had a
relationship with her and he said he wanted to marry her.
[110]
The defendant denied that the plaintiff informed her of any of the
aforesaid two
extra-marital relationships. He only come clean about
them when she confronted him with the respective relationships at the
respective
times as stated above.
[111]
The defendant testified that she suspects that the plaintiff had
another extra-marital
affair with a lady in Bloemfontein.  He
introduced her to the defendant and the children as his colleague.
Initially
she did not suspect that they had a relationship, because
she was married.  However, whenever she was out of Bloemfontein,

she bought the children gifts.  The defendant confronted the
plaintiff but he disputed that they were having a relationship
and
averred that they were just friends.  However, the defendant
could not accept it. She filed for divorce in 2010, which
resulted in
the parties` eventual divorce.
[112]
The defendant also testified that at some stage the plaintiff wanted
to marry a
second wife and justified his intention on the basis that
it was in accordance with his Zulu culture.  The said lady was a

friend of the defendant and known to the family.  When the
plaintiff “introduced” the said lady as the one he

intended to marry, he said that the defendant agreed that they may
get married.  At that stage the defendant responded by
saying
that the plaintiff should do what he wanted to.  However, they
never got married and the lady unfortunately passed
away.
[113]
The defendant explained that at the time when N was conceived, she
was still using
the injections as contraceptives. However, the
injections caused her to gain weight. The plaintiff put pressure on
her by telling
her that she was slim when he married her. She also
got frustrated with her weight. She consequently started using a
slimming mixture
which she bought from a pharmacy in Pretoria.
She in fact lost weight.  When she discovered that she was
pregnant with
N, she went back to their family doctor, since she was
the one who suggested that the defendant should use the injections.
As a
result of certain blood tests the doctor performed, she found a
certain chemical to be present in the defendant`s system. The
defendant
then told the doctor that she was using the slimming
mixture and where she was buying it form.  The doctor called the
pharmacy
to find out what the ingredients of the mixture were.
Thereafter the doctor explained to her that some of the ingredients

of the slimming mixture “
washed away the injection
”
from her system.
Cross-examination
of the defendant:
[114]
Like with the cross-examination of the plaintiff, this part of the
judgment deals
with the cross-examination of the defendant and I will
similarly not be indicating it again in this part of the judgment.
[115]
It was put to the defendant that the plaintiff requested the identity
of N`s father
on numerous occasions. The defendant denied this
statement. According to her the plaintiff never asked her for a name
after the
DNA results became available.
[116]
The defendant conceded that she knew the name of AM all along
(although she did
not know or think that he is N`s father).
When asked whether he is contributing towards maintaining N, the
defendant testified
that his whereabouts were unknown to her.
After the DNA results became available, she tried to trace him, but
she could not
find him.  She has since found out that he is the
head of the Barberton Prison. She, however, testified that despite
the DNA
results, she still believes that N is the plaintiff’s
child.
[117]
When asked whether the contraceptive injection and the use of a
condom are hundred
percent safe for purposes of birth control, the
defendant testified that with the experience she has gone through,
she cannot say
that it is hundred percent safe.
[118]
The defendant testified that the plaintiff did not want to use
condoms when they
had sexual intercourse. She was consequently the
only one who took the responsibility of birth control within their
marriage upon
herself. However, with AM she insisted that he wears a
condom, because she was scared of contracting sexual diseases and
because
she did not want to fall pregnant.
[119]
She was asked what she meant when she testified that she was in a
vulnerable state
the evening when she had sexual intercourse with AM.
The defendant testified that she was shocked as a result of the
events of
the evening with the car having been stolen, after which
they had no choice but to also go the police station and then she
also
had to take AM to the hotel as well.
[120]
The defendant was questioned as to why she thought that only the
plaintiff could be N’s
father in circumstances where she was
intimate with two men.  She testified that if she had known or
had thought that AM was
or could be the father, she would have
embraced the idea of an abortion, as that would have been “
a
way out
”
.
However, it never crossed her mind that AM could be the father,
because they made use of a condom.  In response to
further
questions the defendant repeated her evidence that it never crossed
her mind that AM may be the father of N. That is also
why she never
told the plaintiff that there is a possibility that AM may be the
father of N.
[121]
The defendant was questioned about a statement which was put to the
plaintiff on
her behalf that she never consented to having only one
child, which the defendant confirmed, stating that she wanted two
children.
She, however, conceded that the plaintiff always
wanted only one child.
[122]
The defendant again testified that she drank the slimming mixture
after the birth
of the second child. She was cross-examined on the
basis that she is not an expert and therefore her evidence that it
had an effect
on her contraceptives, cannot be accepted. She
responded that that is what the doctor told her.
[123]
When she was questioned about the plaintiff’s evidence that she
went missing
for a week, she testified that she went to her parents
in Mafikeng after she and the plaintiff had a fight.  According
to
the defendant the plaintiff threatened to kill her and out of
desperation she went to her parents.  The pastor, the
plaintiff’s
uncle and his delegates found her at her parental
home.
[124]
It was put to the defendant that she and AM knew what had happened,
whilst the plaintiff
did not and she also knew that no contraceptive
is hundred percent safe, which statements the defendant confirmed.
When she
was the asked what she should have done in the
circumstances, she testified that she does not know.  She was
certain that
N was the plaintiff’s child because she used a
condom with AM, but not with the plaintiff.  It was then put to
the defendant
that she did not have an exclusive sexual relationship
with the plaintiff, but despite that she did nothing to establish who
the
father of N was, which the defendant confirmed.  She was
then asked whether she could have done something to have established

paternity, to which she responded that if she had suspected that AM
may be the father, she could have done something, but she was
certain
that the plaintiff is N`s biological father.
[125]
The defendant was asked whether she thinks that she had a duty to
disclose to the
plaintiff about AM.  She responded by saying
“
no
”, because the plaintiff never disclosed any of
his extra-marital affairs to her. He never even disclosed that he was
cheating
on her.  She therefore did not deem it fit to disclose
to him about AM.  It was then put to her that the difference
lies
therein that she did not have to pay maintenance to an
illegitimate child as a result of the plaintiff’s extra-marital
affairs.
However, she responded that she paid indirectly,
“
because it caused a gap in our household
”.
She testified that in her opinion she contributed indirectly to the
maintenance of the illegitimate children of the
plaintiff.  With
regard to N as such, the defendant testified that she and the
plaintiff shared the responsibility of maintaining
her, since the
defendant also used her money in favour of N.
[126]
It was put to the defendant that the plaintiff has only one
illegitimate child.
She denied same and testified that he has two
children born out of wedlock.   She testified that she had
a meeting with
the mother of the second child, on the said mother’s
request, because she wanted to ask the defendant for forgiveness.

She testified that the said child is also a nominated beneficiary of
the plaintiff’s pension.  He was born during September

2001.
[127]
It was denied on behalf of the plaintiff that he requested the pastor
to take the
defendant to hospital.  The defendant explained that
the pastor was a family friend and whenever a need arose within the
family,
the plaintiff asked the pastor to help.  She persisted
with her version that she did request the pastor.  The time when

their family friend took her to hospital with the birth of their
third child, it was done on her request and not that of the
plaintiff.
[128]
It was placed on record that she was not going to be questioned about
other girlfriends
and the situation with the car(s) of the children,
since those issues are not relevant to the issue at hand.
Re-examination
of the defendant:
[129]
In re-examination the defendant testified that the plaintiff
explained that according
to the Zulu culture, he was not allowed to
use condoms. When asked whether he ever used a condom, she testified
that during or
about 2006/2007 when they moved to Bloemfontein, she
insisted that he makes use of a condom, because of his history of
infidelity.
However, during the period 2006 to 2008 he seldom
needed to use a condom, because by that time they were separated,
although they
still lived together.
[130]
The defendant testified that according to her the use of a condom
during sexual
intercourse is safer than unprotected sex.
[131]
The defendant testified that she never informed N who her biological
father is since
N never showed interest to know; in fact, she
expressed that she is not interested in knowing.
Further
evidence of the defendant:
[132]
I enquired from the defendant whether N shows any features of AM, to
which she responded
in the negative.  She explained that
personality wise N shows features of all the other children, their
tone of voice, personalities
and characters are the same.  Her
physical features are exactly like those of the defendant.  When
compared with the
other two children, she looks more like the eldest
child than the middle child.
[133]
I allowed further questions emanating from my questions, should there
be any.
[134]
The defendant was further cross-examined about her evidence that when
N was small
and played on her own, the plaintiff said she was like
him.  The defendant explained that the plaintiff meant that N
was acting
in the same manner the plaintiff did when he was a child.
[135]
During further re-examination the defendant was asked whether, when
she looks at
N, she would say, on face value, that she is not the
plaintiff’s child, to which the defendant responded that she
cannot
say that.  She further testified that the plaintiff
always said that N looks like two of his younger brothers and as she
got
older, he said that she has the features of his youngest brother.
[136]
That concluded the defendant`s case.
Exhibits
“A” and “B”:
[137]
This matter served before me for the first time on 13 June 2017. The
parties indicated
that they request a postponement of the matter for
purposes of further DNA testing and I made the following order on
request of
and by agreement between the parties:
“
1.
The matter is postponed to 12 September 2017 in order to continue on
12, 13 and 15 September 2017.
2.
The plaintiff will pay the defendant`s wasted costs in the amount of
R 9000-00 (NINE THOUSAND RAND).
3.
The defendant will give her full co-operation for another DNA test
regarding the paternity of the child
N…and is willing that it
be handed in at court as conclusive proof of the contents thereof.”
[138]
The email, exhibit “A”, reflects that it is from N
addressed to the
defendant`s attorney of record, dated 12 July 2017,
with the subject “
Regarding DNA test
”. It reads as
follows:
“
Greetings
After
receiving phone calls from both my mom (B...N…) and her
attorney (Mr Stefan de Beer), urging me to attend and go through
with
the DNA testing, I, N..., have decided to not attend.
I
deem it unnecessary to do the DNA tests because I believe I know who
my parents are and to my knowledge I was raised by both L…N…

and B…N... I don`t see the need to prove who conceived me.
I
have accepted the current circumstances and wish to move forth with
my life. I am also currently visiting external family members
and
therefore I will not be able to make it for the testing.
Please
respect the choice that I have made.
Thank
you.
N…”
[139]
Exhibit “B” is a Medical Laboratory document titled
“
Final Paternity Test Result”
and the “
Date
of Referral
” is indicated as 20 February 2015 and the date
of “
Result Approved
” is 24 February 2015, both
dates being during or about the time when the plaintiff applied for
rescission of the increased
maintenance order which was granted by
default. It also corresponds with the date averred in the particulars
of claim as to when
it was established that N is not the biological
child of the plaintiff. From exhibit “B” it is evident
that the plaintiff
and N were tested.  The document also
contains a short explanation regarding the “
Background
about this Testing Method
” and the “
FINAL
RESULT
” is recorded to be the following:
“
An
incompatibility with paternity was found at 2 or more markers.
Paternity of Individual 1…MN…is excluded with a
high
degree of certainty.
”
[140]
Considering the abovementioned dates, it appears that the further DNA
testing as
agreed upon in the abovementioned court order did not take
place and that the parties are relying on the original DNA tests.
[141]
I have already indicated earlier in the judgment that the parties
specifically indicated
at the commencement of the trial that the
results of the DNA tests (hence exhibit “B”) are not
disputed.
Legal
principles and the application thereof on the facts of the present
action:
[142]
Both Mr Cronje, who appeared on behalf of the plaintiff, and Mr Ploos
van Amstel,
who appeared on behalf of the defendant, provided me with
written heads of argument in support of their respective
submissions.
Mr Cronje also provided me with written heads of
argument in reply to certain aspects in the defendant’s heads
of argument.
In addition, both counsel addressed me orally on
the merits of the action.
[143]
It is evident from the particulars of claim that the plaintiff’s
cause of action
is based on fraud, on the basis of a
misrepresentation; alternatively, a fraudulent non-disclosure.
[144]
The essential elements for a claim based on fraud are set out
in
Amler’s Precedents of Pleadings,
LTC
Harms, 9
th
Edition at p. 204:
“
(a)
A representation by the representor to the representee.  The
representation usually
concerns a fact but may relate to the
expression of an opinion set to be held but which is in fact not
held.  …
Non-disclosure can amount to a
representation.
(b)
Fraud (i.e. that the representor knew the representation to be
false).
It is not sufficient to allege that the representation
was ‘false’, because this word implies no more than that
the
representation was untrue. The mental element must be alleged.
…  The representor must intend that the representee
will
act on the representation.
(c)
Causation (i.e. the representation must have induced the representee
to
act in response to it).
(d)
If damages are
claimed, it must be alleged that the representee suffered damages

because of the fraud.
(e)
If reliance is placed on fraudulent non-disclosure, facts giving rise
to the duty to disclose must be set out.  It is also necessary
to show that the breach of the duty to disclose was deliberate
and
intended to deceive.”
[145]
A party wishing to rely on fraud must not only plead it but also
prove it clearly
and distinctly.  See
Courtney
Clarke v Bassingthwaighte
1991
(1) SA 684
(Nm)
at 689 F - G.  The
onus
is
the ordinary civil
onus,
one
that must be discharged on a balance of probabilities,
bearing
in mind that fraud is not easily inferred.  See
Gilbey
Distillers & Vintners (Pty) Ltd v Morris NO
1990
(2) SA 217
(SE)
at 225 J – 226 A.
A.
Fraud based on a misrepresentation – a
commissio
:
[146]
In
LAWSA
, Volume 29, Third Edition, at paragraph
307 the following definition of a fraudulent misrepresentation is
stated:
“
A
fraudulent misrepresentation, which gives rise to delictual
liability, may be defined as a
wrongful
and intentional false representation of fact
which
induces another to act and which causes patrimonial loss.” (My
emphasis)
[147]
The following is stated with regard to positive conduct and omissions
in relation
to delictual liability in
LAWSA
,
Volume 15, Third Edition, at paragraph 71:
“
71 Positive
conduct and omissions.
Conduct
may be either a positive act (a commission) or an omission. Positive
conduct may be physical conduct or it may take the
form of a
statement. These distinctions are of fundamental importance to the
law of delict. Although they are all forms of conduct,
the policy is
to treat them differently for the purposes of legal liability.
[148]
In
Herschel
v Mrupe
1954
(3) SA 464
(A)
at 485 A the following was stated in respect of wrongfulness:
“
One
senses immediately that an essential element has been left
out, perhaps because it was so obvious that it was unnecessary

to mention it, namely that the act or omission complained of must be
an
unlawful
incursion
into another's economic sphere.”
[149]
The aforesaid distinction between commissions and omissions, is also
very relevant
when considering the issue of unlawfulness. In this
regard the following extract from
LAWSA
, Volume
29, Third Edition, at paragraph 308 is, in my view, very important
for purposes of the present matter:
“
308
Wrongfulness.
Since
a fraudulent misrepresentation is
ex
hypothesi
wrongful, wrongfulness
has received scant attention in practice.
In
case of a
commissio
,
that is a misrepresentation by word or other positive conduct
,
wrongfulness is usually taken for granted if it is proved that the
representor acted fraudulently. Wrongfulness must be determined

with reference not only to the misrepresentation itself, but also to
the loss suffered. (My emphasis)
[150]
With regard to the alleged misrepresentation, reliance is placed, in
terms of the
particulars of claim, on the allegations that “
the
defendant represented to the plaintiff that N was his child and that
she had an exclusive sexual relationship with the plaintiff
during
the time that N was conceived
”.
[151]
It was also pleaded that when the defendant made the aforesaid
representations the
defendant knew them to be false.
[152]
From the defendant’s plea it is evident that the defence is
based on a denial
of the aforesaid allegations, with a plea that both
parties acted under a mutual impression that the plaintiff is N’s
father.
Mr Cronjé pertinently pointed out that the averment
that the defendant represented that she had an exclusive sexual
relationship
with the plaintiff during the time that N was conceived,
was not denied, but merely “
noted
”.
[153]
On the defendant`s own version she did not tell the plaintiff about
her one-night
stand sexual encounter with AM. However, at the same
time there is no evidence that she actively or pertinently made any
representations
and/or lied to the plaintiff in this regard. The
defendant simply kept her silence.
[154]
On the plaintiff`s own version he never confronted the defendant
about a possible
extra-marital affair on her side, not even when he
suspected same with regard to the pastor. The plaintiff did not even
do so when
he, according to him, saw the different health and/or
bodily features of N as opposed to those of himself and/or his
family.
[155]
As stated in
Amler`s
,
supra,
it
is not sufficient for purposes of fraud as cause of action that the
representation was untrue. The plaintiff needs to prove on
a balance
of probabilities that the representor knew that the representation
was false or untrue. In
Phame
(Pty) Ltd v Paizes
1973
(3) SA 397
(A)
at 409 A, the court stated as follows in this regard:
“
I
pause here to observe that, despite the averment in (x),
supra
,
that the representation was false, the plaintiff does not aver
that it was wilfully false. Hence it does not amount to fraudulent

misrepresentation; see
Breedt
v Elsie Motors (Edms.) Bpk
.
,
1963
(3) SA 525
(AD).
The case is therefore one of innocent misrepresentation. This was
accepted by both sides.”
[156]
In my view it cannot be found that the defendant made a
representation by means
of a positive act (a
commisio
) to
the defendant as alleged by the plaintiff. There was consequently no
misrepresentation. Even if I am to be wrong in my finding
with regard
to the existence of a misrepresentation, the plaintiff in any event
failed to prove that it was a fraudulent misrepresentation,
since I
cannot find on the evidence that it was proven beyond reasonable
doubt that the defendant knew that N was not the biological
child of
the plaintiff. I can consequently not find that the defendant made
such representation intentionally whilst knowing that
it was false or
untrue.
B.
Fraud based on a fraudulent non-disclosure – an
omissio
:
[157]
The reliance on the alternative of a fraudulent non-disclosure, is,
in terms of
the particulars of claim, based thereon that the
defendant had a duty to disclose to the plaintiff that she had an
extra-marital
affair during the time that N was conceived, which she
failed to do with the intention to deceive the plaintiff.
[158]
In
LAWSA
, Volume 15, supra, at paragraph 71 the
following principles are stated with regard to liability based on
alleged fraudulent non-disclosures:
“
Liability
for omissions is generally more restricted than liability for
commissions
,
…
For
reasons of public policy, the law is reluctant to assume too readily
the existence of a legal duty in these instances.
In
cases involving omissions the law does not generally demand
altruistic behaviour: it does not require you to love your neighbour,

but only that you shall not injure your neighbour. The law also
recognises that ‘
words
are more volatile than deeds
’
and
that some restriction should be placed on the scope of liability in
such cases.” (My emphasis)
[159]
The further principles in this regard are stated in
LAWSA
,
Volume 29,
supra,
at
paragraph 308:
“
The
requirement of wrongfulness requires specific attention where the
misrepresentation consists of an
omissio
or
non-disclosure (such as a failure to remove an existing false
impression).
Wrongfulness
of a failure to speak depends on the existence of a duty to speak. If
no such duty existed, the silence is not wrongful
and no action will
lie
. There
is no general duty to the world at large to make a disclosure. Such a
duty arises towards particular people in particular

circumstances.
The
criterion for determining the existence of a duty to speak lies in
the legal convictions of the community (
boni
mores
)
.
…” (My emphasis)
[160]
By way of introduction I wish to refer to an extract from
Family
Law Service
, B Clark, LexisNexis, May 2022, S1 77 at A60 in
relation to the concept of “consortium”:
“
A
large part of married life is covered simply by the term
‘consortium’. Although the law is usually concerned with

the consortium of the parties when the marriage relationship is
destroyed or impaired by a third party, the question of consortium
is
also one that can be raised
inter
partes
.
It is accepted that the parties retain their individuality after the
marriage and that they are bound to each other by legal,
moral,
ethical and religious ties.
In
general, we may summarise these ties by saying that a clear duty to
live together as husband and wife, to be faithful to one
another, to
give each other loyalty, assistance and support can be recognised.
These are the ingredients of the consortium. But
there is no clear
indication that these duties are in fact legal duties which the one
owes the other in spite of the fact that
the spouses undoubtedly
contract the marriage in the expectation that these duties will be
honoured. The reason is that there are
very limited legal remedies
for the enforcement of these duties and this calls the legal
character of the duties into question.”
(My
emphasis)
Is
there a legal duty to disclose an extra-marital affair:
A.
Australian case law:
[161]
In the High Court of Australia, on appeal from the Supreme Court of
Victoria, in
the matter of
Magill
v Magill
[2006]
HCA 51
(9
November 2006) M152/2006 the court dealt with the question whether
the tort of deceit can be applied in marital context
in relation to
false representations of paternity.  The appellant and the
respondent married in April 1988. They separated
in November 1992 and
the marriage was dissolved in February 1998.  Between 1988 and
1992, the respondent gave birth to three
children:  a son born
in April 1989, another son born in July 1990 and a daughter born in
November 1991.  After the separation,
following an application
by the respondent, the appellant made payments under the Child
Support (Assessment) Act 1989 (Cth) in
respect of all three children
and such payments continued until late 1999.  In April 2000 it
was established by means of DNA
testing that the appellant was not
the father of either the second child or the third child.
[162]
The appellant commenced proceedings against the respondent in the
County Court of
Victoria.  The cause of action was the tort of
deceit.  The appellant claimed two kinds of damages.
Firstly, the
appellant alleged that he had suffered personal injury
in the form of anxiety and depression consequential to the
respondent’s
fraudulent misrepresentation.  Secondly, he
claimed financial loss, including loss of earning capacity by reason
of his mental
or psychological problems and loss related to the time
he had spent with and money he had spent on the children under the
mistaken
belief that he was their father.  The appellant
succeeded at trial and was awarded damages.  The decision of the
trial
judge was reversed by the Court of Appeal of the Supreme Court
of Victoria on the ground that the appellant had failed to establish

the essential elements of the tort of deceit.  This judgment
deals with the appellant`s appeal in which he sought the restoration

of the original award of damages.
[163]
In paragraph 8 of the judgment the court referred to the averments
that were made
in support of the tort of deceit:
“
8.
…In late 1989, the respondent represented to the appellant
that he was the father of the second child.  In early
1991, the
respondent represented to the appellant that he was the father of the
third child.  Both representations were false.
On the
faith of the representations the appellant believed that he was the
father and altered his position to his detriment.
The
representations were made fraudulently, with the respondent either
knowing that they were false or recklessly not caring whether
they
were true or false.  At the time of the representations the
respondent indeed intended the appellant to rely on them.
As a
result of the representations the appellant suffered loss and
damage.  …”
[164]
The court stated,
inter alia,
as follows at the
respective paragraphs of the judgment, as indicated:
“
21.
… F
alse
representations about paternity could be the result of carelessness
rather than deliberate fraud.  Furthermore, in domestic
and
other personal relations, in between carelessness and deliberate
fraud there may be conduct which is not easy to classify in
simple
moral terms.”
“
35.
…One of the obvious difficulties about the topic of paternity,
or the wider topic of sexual infidelity, (a difficulty
that is not
peculiar to those topics), is t
he
danger of creating something very close to a legal duty to disclose
facts in circumstances where there could be a serious question
about
the existence of a corresponding ethical obligation.
…
(My
emphasis)
“
43.
…It was the failure to disclose her extra-marital relations
and their possible connection with her pregnancies that was
the
critical element in the deception.  Yet,
unless
it can be said that there was then (that is, in effect, when the
children were born) a legal or equitable duty to disclose
the truth,
her silence did not amount to a representation. …”
(My
emphasis)
Gleeson
CJ concluded as follows at paragraph 49 of his judgment:
“
49.
The matters which an individual party to a marriage might properly
regard as intimate and private are not limited to questions
of
paternity of children of the marriage, or sexual fidelity, or to
events that occurred during the marriage.
Finding
a duty to disclose the truth about some matters would be inconsistent
with the ethical context in which such a judgment
must be made
.
Imposing legal consequences upon behaviour in such a relationship
also may be inconsistent with the subjective contemplation
of the
parties and with public policy as reflected in legislation.  In
that connection, the extensive scheme of regulation
of the legal
incidents of the marriage relationship contained in the Family Law
Act, based as it is largely upon a policy of minimizing
the
importance of questions of ‘fault’, forms an important
part of the setting in which judgments about dishonesty,
and
actionable damage, must be made.  The application of the common
law of deceit to marital relationships is not impossible
and there
are no rigidly defined zones of exclusion, but attempts to construct
legal rights and obligations in an unsuitable environment
should
fail, as did this attempt.” (My emphasis)
[165]
Gummow, Kirby and Crennan, JJ stated as follows at paragraphs 130 and
132 of their
judgment:
“
130.
There
is currently no recognised legal or equitable obligation, or duty of
care, on a spouse to disclose an extra marital sexual

relationship to the other spouse during the course of a marriage.
There is a mantle of privacy over such conduct which protects
it from
scrutiny by the law
.
…” (My emphasis)
“
133.
…
Private
matters of adult sexual conduct and a false representation of
paternity during a marriage are not amenable to assessment
by the
established rules and elements of deceit. … In the
absence of a clear need for the common law to impose a legal
or
equitable duty of disclosure of such matters they should be left, as
they are now, to the morality of the spouses, encouraged
by the
legislature's support for truthfulness about paternity in the various
provisions of the
Family
Law Act
which
have been mentioned.”
[166]
In his judgment Hayne, J determined as follows at paragraphs 156 and
158:
“
156.
…
The
trust and confidence required between marriage partners must be
supplied by them; it cannot be provided by legal norms and duties
in
the same way as those norms and duties may regulate commercial
interactions
.”
(My emphasis)
“
158.
The
law cannot satisfactorily prescribe how a relationship that depends
entirely upon matters wholly personal and private to the
parties to
it is to be maintained.  The trust and confidence between
marriage partners is based in much more than considerations
of sexual
fidelity; it is based in complex and subtle considerations of human
relationships.
These
are not amenable to the external application of duties of the kind
described.”
(My
emphasis)
[167]
The appeal was dismissed with costs.
B.
Canadian case law:
[168]
In the Canadian case of
D’Andrade
v Schrage
2011
ONSC 1174
,
delivered on 28 February 2011 the Ontario Superior Court of Justice
dealt with the question whether a marriage contract should
be set
aside because, unbeknown to the husband, on the day that the wife
signed the contract, she was having an affair and was
contemplating
separation.  The court stated at paragraph [73] of the judgment
that there was no case on the particular point,
being where a
marriage contract has been set aside because of a failure to disclose
an affair or an intention to separate.
In paragraph [74] of the
judgment the court referred to the matter of
Saul
v Himel
,
which judgment I will again refer to later in this judgment with
regard to the issue of public policy. The court referred to the
fact
that in the
Saul
-judgment
it was found that ‘
separation
agreements are more akin to commercial contracts than they are to
family settlements
’.
Thus, by implication, the requirement of
uberrima
fides
would
not apply.  In paragraph 20 of the
Saul
-judgment,
which was relied upon in the
D’Andrade
-judgment,
the following was stated:
“
The
former husband is effectively saying that every spouse has a duty to
tell his or her spouse of any extra-marital affair he or
she may have
had during the marriage.  It is unclear whether the former
husband thinks that this must be done when it occurs,
immediately
thereafter, or some time later.
Marriage
is still a private domain and the public, through the judicial
system, should not be involved in scrutinising the behaviour
of
spouses in private matters while they are not involved in the
judicial system.
”
(My
emphasis)
[169]
In paragraphs [75], [78] and [80] of the
D’Andrade
-judgment
the court further found,
inter alia,
as follows:
“
[75]
In
D.(D.R.)
v. G.(S.E
.)
(2001),
2001
CanLII 28122 (ON SC)
,
14 R.F.L. (5th) 279 (Ont. S.C.J.) Grang
er
J. considered a case where the ex-husband moved to set aside the
provisions in a divorce judgment requiring him to pay support
for a
child that he later found out was not his biological child. In
dealing with the claim, Granger J
found
that a wife owed no duty to a husband to tell him that he might not
be the father of the child.”
(My
emphasis)
“
[78]
To require spouses to disclose their thoughts about the likelihood of
separation or their involvements in extra-marital sexual
activity
before signing a marriage contract could have serious implications
for the survival of marital relationships. …”
“
[80]
In this case, the public policy implications of requiring married
couples to disclose their thoughts of separation or their
involvement
in extra-marital relationships before executing a marriage contract
are negative rather than positive. In recognition
of the fact that
marriages are complicated institutions, whose failure can rarely be
attributed to one party or the other,
the
law has evolved in a fashion that by and large eliminates conduct
from the analysis of financial entitlement
.
In essence, Mr. Schrage is seeking to reintroduce conduct into the
consideration of whether a marriage contract should be set
aside.
This is a road the law has been down before and, based on that
experience, it is a road to be avoided unless justice demands
it.”
(My emphasis)
[170]
In the Canadian case of
Cornelio
v Cornelio
,
2008
CanLII 68884 (ON SC)
,
dated 22 December 2008, held in the Ontario Superior Court of
Justice, the court referred to a line of judgments and stated as

follows at para [20] of the judgment:
[20]
Each
of these cases refuses to recognize any obligation on the part of the
mother to disclose her extramarital affair
…”
C.
South African case law:
[171]
In the well-known case of
DE
v RH
2015
(5) SA 83
(CC)
the Constitutional Court had to determine whether there is
justification for the continued existence of a delictual claim
based
on adultery. The first sentence of paragraph [1] of the introduction
to the unanimous judgment, penned by Madlanga J, reads
as follows:
“
[1]
Undertakings of fidelity — whether in the form of
ho
lauwa
,
go
laiwa
or
ukuyalwa
or
solemn vows or any other form dictated by various cultures or
religions — are no guarantee that adultery will not take
place
in marriage. In fact, adultery is probably fractionally younger
than the institution of marriage. …”
[172]
At paragraph [42] of the judgment the following was stated:
“
[42]
… The applicant wants the law to use punitive measures to come
to his aid as the non-adulterous spouse. In this
case the
marriage deteriorated without obstruction or intervention by the law.
The distinction is not insignificant. It is one
thing for the law to
protect marriages by removing all legal obstacles that impede
meaningful enjoyment of married life.
It
is quite another for spouses to expect the law to prop up their
marriage which — for reasons that have nothing to do with
the
law — is weakening or disintegrating
.”
(My emphasis)
[173]
In dealing with public
policy, Madlanga J stated
inter alia,
as follows:
“
[51]
… Does public policy — a notion that is now informed by
our constitutional values — tell us that the delictual
claim
founded on adultery must still be part of our law?...
[52]
… What also comes into the equation are the softening and
current trends and attitudes towards adultery. The
constitutional
norms and changing attitudes are not necessarily
separate notions: constitutional norms also inform present-day
attitudes
towards adultery.
[53]
Of relevance in respect of the adulterous spouse and the third party
are the rights to freedom and security of the person, privacy and

freedom of association. These rights do not necessarily weigh
less just because the two have committed adultery.
[54]
The
delictual claim is particularly invasive of, and violates the
right to, privacy. This very case is illustrative of this
.
The Supreme Court of Appeal dealt with the abusive, embarrassing and
demeaning questioning that Ms H suffered in the High Court.
She was
'made to suffer the indignity of having her personal and private life
placed under a microscope and being interrogated
in an insulting and
embarrassing fashion'. Likewise, in order to defend a delictual
claim based on adultery, the third party
is placed in the invidious
position of having to expose details of his or her intimate
interaction — including sexual relations
— with the
adulterous spouse. That goes to the core of the private nature of an
intimate relationship.
[55]
… It is equally true that there are factors that may make the
act of adultery less reprehensible and, in certain instances,
not
reprehensible at all. … The antecedent question is whether —
in the face of the overarching constitutional rights
of the
adulterous spouse and third party — there should be a delictual
claim at all.” (My emphasis)
[174]
The judgment continued as follows at paragraphs [60] - [63] thereof:
“
[60]
The right of a non-adulterous spouse that is implicated by the act of
adultery is the right to dignity. …
[61]
…
[62]
Nevertheless, this potential infringement of dignity must be weighed
against
the infringement of the fundamental rights of
the adulterous spouse
and the third party to privacy,
freedom of association and freedom and security of the person. These
rights demand protection from
state intervention in the intimate
choices of, and relationships between, people. This must be viewed in
light of current trends
and attitudes towards adultery, both
nationally and internationally.
These attitudes also
demonstrate a repugnance towards state interference in the intimate
personal affairs of individuals
.
[63]
… That is what public policy dictates. In this day and age, it
just seems mistaken to assess marital fidelity in terms
of money.”
(My emphasis)
[175]
Mogoeng CJ, with Cameron J concurring, added to the aforesaid
judgment “
[to] lay some emphasis on and give perspective to
certain aspects of the main judgment
”:
“
[68]
The essence of marriage and what it takes to sustain it were captured
by the Bundesgerichtshof as follows:
'(M)arriage
is a human institution which is regulated by law and protected by the
Constitution and which, in turn, creates genuine
legal duties.
Its essence, however, consists in the readiness, founded in morals,
of the parties to the marriage to create
and to maintain it.'
…
[69]
…
The law does and can only create a regulatory
framework for the conclusion of marriage and the enforcement of
obligations that flow
from it. It can also help ensure that barriers
to family life are removed. The rest is in the hands of the
parties to
the marriage
. Barring exceptions, they decide freely
to get married and it is within their ability to protect their
marriage from disintegrating.
[70]
It bears emphasis that marriage essentially hinges on the 'readiness,
founded in morals, of the parties to the marriage to
create and to
maintain it'. Like the Supreme Court of Appeal, I also believe
that parties' loss of moral commitment to sustain
marriage may lead
to its failure. For abuse of one by the other and other factors that
could lead to the breakdown of marriage
are in my view likely to
creep in when that commitment ceases to exist.
[71]
The law cannot shore up or sustain an otherwise ailing marriage. It
continues to be the primary responsibility of the parties
to maintain
their marriage. …
[72]
I reiterate my concurrence in the judgment by Madlanga J.” (My
emphasis)
[176]
In
RP
v PP
2016
(4) SA 226
(KZP)
at para [41] the following applicable principles were stated:
“
[41]
The assessment of the factors relevant to misconduct must be
conducted with an awareness of prevailing social mores and attitudes.

Unfortunate as it may be, extramarital affairs, instead of an
observance of marriage vows, particularly faithfulness to one's
spouse, are prevalent, irrespective of the age of the parties or the
duration of their marriage. As a consequence, the disapproval
and
stigma once attached to adultery have diminished, and
extramarital affairs no longer receive the censure they used to.

Nevertheless, this relaxed attitude towards infidelity ought not
unduly diminish the significance of such misconduct in the exercise

of a court's discretion in determining an equitable redistribution.
The effect of the betrayal on an aggrieved party who has
remained committed
to her/his marriage remains a relevant
factor,
and
the general rule that each case must be evaluated on its own set of
facts applies.
”
(My
emphasis)
[177]
I respectfully agree with the principles pronounced in the aforesaid
case law.
[178]
Consequently, and in my view, there exists no legal duty on one
spouse to disclose
the existence of an extra-marital affair to the
other. The defendant therefore had no legal obligation to have
informed the plaintiff
of her one-night sexual encounter with AB. Her
failure to have done so did consequently not constitute a fraudulent
non-disclosure
as claimed by the plaintiff.
[179]
The plaintiff’s alternative claim can consequently also not be
upheld.
C:
Public policy:
[180]
In addition to the aforesaid, the defendant’s defence is
further based thereon
that the plaintiff’s claim is
contra
bonos mores
for the reasons set out in paragraphs 12 and 13
of the amended plea, which I have already quoted earlier in this
judgment.
[181]
In terms of the plaintiff’s replication to the defendant’s
amended plea,
the defence that the plaintiff’s claim is
contra
bonos mores
is denied for the reasons set out in the
replication, which I have already quoted earlier.
[182]
For the sake of completeness I deem it necessary to also deal with
the aforesaid
issues raised in the pleadings.
[183]
Section 28(2) of the Constitution of the Republic of South Africa,
108 of 1996,
determines as follows:
“
28
Children
(1)
Every
child has the right-
…
(2) A
child's best interests are of paramount importance in every matter
concerning the child.”
[184]
Mr Cronjé referred to and relied on the judgment in
D
v M & Others
2016 JDR 0067 (GJ) in which judgment,
according to Mr Cronje’s argument, “the Court confirmed
that depending on
the circumstances, the privacy rights of a
non-consenting adult not to be tested must yield to the demand of
discovering the truth
in the best interests of the administration of
justice”.  In this regard he referred to paragraph [29] of
the judgment
in which the following was stated:
“
[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.
[185]
Although the court made the finding pointed out by Mr Cronjé,
it is necessary
to take note of two important aspects raised in the
aforesaid paragraph [29]:
1.
The court referred to instances “where it finds that the
competing
rights and interests of the parties require the truthful
verification of paternity”.
2.
Secondly and very importantly the court referred to circumstances

where it was “in the best interests of the child that reliable
information be obtained to gain clarity on the question of

paternity”.
[186]
The matter of
ER v LB
, Case no: 2237/2013,
delivered in the Western Cape High Court on 11 September 2011, was an
application for the repayment of maintenance
on the basis of
unjustified enrichment, in circumstances where the appellant alleged
that he made certain overpayments to the defendant
with regard to the
maintenance for the parties’ two minor children. Although the
facts in that matter are distinguishable
from the present matter in
that      the plaintiff was the biological father
of the two children the fact remains
that the court considered the
plaintiff’s claim against the background of what the court
considered to be in the best interest
of the children. The court
stated,
inter alia
, the following in paragraphs [28] and
[29] of the judgment:
“
[28]
…
In
particular, the applicant’s claim for repayment of the
maintenance amount offends public policy …
[29]
Mr Shaw’s ‘constitutional’ submission that the
fathers would be unequally treated
if they are not allowed to reclaim
overpayment of maintenance is misplaced.  …
The
rights of the fathers or parents that Mr Shaw refers to must be
considered in the context of public policy and the constitution.

Those rights cannot in my view be paramount over the best interests
of a child
. …” (My emphasis)
[187]
In
Arendse
v Arendse
2013
(3) SA 347
(WCC)
the court dealt with the issue of the extent to which the children’s
rights and interests should be considered
when a court is considering
an eviction application in terms of Act 19 of 1998 (“PIE”).
The parties were married
in terms of Islamic law and civil law and
later divorced in terms of Islamic and civil law.  The main
dispute between the
parties pertained to whether the respondent
complied with his promise of providing a house for the applicant as
part of her dowry
and as recorded by the Muslim Judicial Council in
their marriage certificate. This determined whether the applicant had
a right
to reside in the house or whether the respondent could
legitimately evict the applicant and their three minor children. In
the
Magistrate’s Court the respondent was successful in
obtaining an eviction order in terms of PIE. The applicant
subsequently
brought an application to review the eviction order in
the High Court.  The court found that because the application
before
the Magistrate concerned children, the children’s
constitutional rights in terms of section 28 became immediately
applicable
and the Magistrate`s failure to have considered section
28, was fatal.  The court found,
inter
alia
,
as follows at paragraphs [37] and [39] of the judgment:
“
[37]
At the very least the rights and interests of the applicant’s
children, faced with an eviction at the behest of their
father who
has parental obligations to them, ought to have loomed large in the
extraordinary circumstances of this case.
The scenario before
the second respondent [the Magistrate] invoked,
inter
alia
,
the children’s rights enshrined in s 28 of the Constitution…
The second respondent appears not to have been
astute to this, nor to
the dictates of s 28(2) of the Constitution, which states that a
‘child’s best interests are
of paramount importance in
every matter concerning the child’.
[38]
….
[39]
The second respondent simply failed to have regard to the interests
of the children and to appreciate the proper scope of the
first
respondent’s parental duties.  In ordering the children’s
eviction the second respondent misconstrued the
nature of the enquiry
required of him and imperilled the children’s wellbeing.
I
agree with the submission on behalf of the applicant that, in all of
the circumstances, the failure to investigate what effect
the
eviction order would have on the three children was a far-reaching
irregularity and in itself constitutes sufficient grounds
for its
setting-aside
.” (My emphasis)
[188]
In
Juta’s Quarterly Review of South African Law
,
April to June 2013 (2), Juta Law Online Publications, the author, C
du Toit (
BA LLB (Stell) LLM (UP) Attorney at
the Centre for Child Law)
, made the following remarks with
regard to the aforesaid judgment:
“
This
judgment follows a long line of case law from the Constitutional
Court emphasising that children’s rights must be the
primary
occupation of every court concerned with matters involving children.
The decision by the Magistrate shows a pre-occupation
with the
dispute between the parents, i.e. a parent-centred perspective, where
is what is required by courts is a child-centred
perspective.
This is not only the approach prescribed by the Constitution but PIE
itself requires magistrates to consider
the interests of the
children.  All courts should be reminded of the dicta of the
Constitutional Court in S v M [Centre for
Child Law as Amicus
Curiae]
[2007]
ZACC 18
;
2008
(3) SA 232
(CC)
at paras [15] and [24]]:
‘
The
comprehensive and emphatic language of section 28 indicates that just
as law enforcement must always be gender-sensitive, so
must it always
be child-sensitive; that statutes must be interpreted and the common
law developed in a manner which favours protecting
and advancing the
interests of children; and that courts must function in a manner
which at all times show due respect for children’s
rights.
…. A truly principled child-centred approach requires a close
and individualized examination of the precise
real-life situation of
the particular child involved.  To apply a pre-determined
formula for the sake of certainty, irrespective
of the circumstances,
would in fact be contrary to the best interests of the child
concerned.’”
(My
emphasis)
[189]
In the matter of
MN
v AJ
2013
(3) SA 26
(WCC)
the parties got married in 1989 and a daughter N, was born in 1990.
They got divorced in 1995 and the respondent
paid maintenance in
respect of the child until 2006, when it was discovered by means of
DNA testing that N was not the respondent’s
biological
daughter.  The respondent claimed recovery of all maintenance
contributions in the Magistrate’s Court from
the appellant,
successfully so.  The appellant, the mother of N, appealed
against the order of the Magistrate’s Court.
The
respondent’s case was based on the
condictio
indebiti
,
but on appeal the court found,
inter
alia,
that
the respondent failed to establish a claim of enrichment.
However, the court also dealt with “
Considerations
of public policy
”
and the court stated as follows in paragraph [75], [78] and [79]:
“
[75]
Finally, I turn briefly to considerations of public policy.
Section 39(2) of the Constitution
requires a court to promote the
spirit, purport and objects of the Bill of Rights when developing the
common law. …”
“
[78]
Considerations of public policy must be viewed through the prism of
constitutionalism.
In
Barkhuizen
v Napier
Ngcobo
J addressed the issue as follows:
'Public
policy represents the legal convictions of the community; it
represents those values that are held most dear by the society.

Determining the content of public policy was once fraught with
difficulties.  That is no longer the case. Since the advent

of our constitutional democracy, public policy is now deeply rooted
in our Constitution and the values that underlie it. Indeed,
the
founding provisions of our Constitution make it plain: our
constitutional democracy is founded on, among other values, the

values of human dignity, the achievement of equality and the
advancement of human rights and freedoms, and the rule of law. And

the Bill of Rights, as the Constitution proclaims, is a
“cornerstone” of that democracy; “it enshrines the

rights of all people in our country and affirms the democratic
[founding] values of human dignity, equality and freedom”.'
[79]
Given
the findings which I have made above it is not necessary to come to a
final decision on this aspect of the case.  Suffice
it to say
that courts may in the future be wary of recognizing claims in
circumstances such as the present which necessitate an
enquiry into
paternity and which may have the tendency to destroy an otherwise
loving and caring parental relationship with a child
whose rights to
family and parental care are protected under Section 28 of the
Constitution.
”
(My
emphasis)
[190]
In
Juta’s Quarterly Review of South African
Law
,
supra
, the author to whom I referred above,
C du Toit, remarked as follows with regard to the last-mentioned
judgment of
MN v AJ
:
“
There
is something inherently problematic in a claim for recovery of
maintenance where the father-child relationship existed for
more than
15 years.  What is glaringly absent from the facts of the case
is the nature of AJ’s relationship with his
daughter, the
impact that the claim for unjust enrichment has had on their
relationship and perhaps, more profoundly, the impact
of discovery
that they are not biologically related on their relationship.
As
with
Arendse
v Arendse
,
the approach of the parents, the Magistrate in the lower court and
the High Court, apart from the one paragraph
obiter
,
seem exclusively parent-centred and legalistic.
There
is very little consideration of what the child’s right is to
parental care and whether a discovery after 15 years could
negate the
factual and legal relationship that existed for the 15 preceding
years.  It is submitted that it would be contrary
to children’s
best interests and their right to parental care.
(My
emphasis)
[191]
In the Canadian case of
Cornelio v Cornelio
, held
in the Ontario Superior Court of Justice, referred to earlier in this
judgment, the respondent father sought,
inter alia
,
repayment of the child support that he paid to the applicant for two
16-year old twins after DNA testing confirmed that he was
not their
biological father.  He sought such repayment from the date of
separation in 1998, or at least from the date of a
consent order of 2
May 2022, when the parties agreed to joint custody and to child
support for the three children.
[192]
It should immediately be mentioned that the said case is
distinguishable from the
present matter in that in that instance
there were two Acts applicable which gave an extended meaning to the
word “parent”,
firstly being somebody who “
stood
in the place of a parent
” toward a child and secondly “
a
person who has demonstrated a settled intention to treat a child as a
child of his or her family
”. In those instances, a putative
father can be held responsible for the payment of maintenance even
when it turns out that
he is not the biological father. However, in
my view the judgment addressed certain principles which are relevant
to the present
matter, irrespective of the aforesaid distinction.
[193]
In paragraph [12] of the judgment the court referred to the judgment
by Maresca,
J i
n
B.
(B.) v. B. (C.P.)
,
[2005] O.J. No. 120
9,
2005
ONCJ 101
(CanLII)
.
In that matter the respondent had r
eceived
information after separation suggesting that two of the children from
the marriage were not his biological offspring. After
DNA testing
confirmed his suspicions, he had terminated contact with the children
and resisted paying support. Maresca, J determined
as follows at
paras [17] [20] and [21] of that judgment:
“
[17] It
is the relationship that existed prior to the break-up of the family
unit that is relevant to the analysis.  This
is consistent with
an approach that maintains the best interests of the children as its
goal.  Hindsight makes for a poor
platform on which to base
decisions regarding children.”
“
[
20] …
The
appropriate question to ask is whether the relationship that existed
at the time that the family was functioning as a unit,
up until
separation, was one in which the father treated the child as his
own.  To permit a father, in a sense, to ‘backdate’

his decision to parent the children ignores completely the reality of
the children’s lives.  Although the father may
have made a
different decision had he been advised of the facts at the time of
the child’s birth, the fact is that he was
a parent to the
child for many years.  The emotional bonding, shared memories
and trust that was built up over time cannot
be wiped out with the
stroke of a pen.  For better or for worse, with intention or
without it, Mr. B is the boys’ father.
In all the ways
that fatherhood matters — love, guidance, pride, nurturing,
role modelling, connection — Mr. B is a
father to these boys.
It is their concept of him as father that was — and continues
to be — important.
This was not a relationship entered
into by either child or parent in a tentative or temporary fashion.
It has been, since
the children’s birth, the only paternal
relationship that either the boys or Mr. B has known.
[21] Modern
society has moved away from a rigid definition of the family.
Illegitimacy has been abolished.  Marriage
is not a
pre-requisite for support.  Same-sex couples raise loving,
healthy families.  There has been a recognition both
by society
at large and our legal system that it is the relationship that
matters, not the legality.
It is the sense of family
and bonding between parent and child that is important, not whose DNA
is lodged in the child’s cells.
To permit Mr. B to
repudiate his relationship with these children, built and
demonstrated over the entire course of their lives,
would be grossly
unfair to them.  If we are to be sensitive to the realities of
these boys’ experience and to act in
their best interests, the
court must acknowledge the fact that Mr. B has demonstrated a settled
intention to treat them as his
own children.
” (My emphasis)
[194]
The court in the
Cornelio
-judgment
then concluded as follows at para [13] of the judgment:
“
[13]
Maresca,
J focused on the relationship that had developed and existed before
separation, irrespective of the contention by the respondent
that he
never would have fostered such a relationship had he known he was not
the children's biological father. She considered
the unfairness that
would result to the children if the only father they had known could
unilaterally withdraw from the relationship
and any obligation to
provide support. A best interests analysis on the facts of that case
could lead to no other result
.”
(My emphasis)
[195]
The court further referred to the following circumstances which are,
in my view,
very relevant to the matter
in casu
:
“
[
24]
Even
if this matter were approached on the basis of fairness to the
respondent …. By his own admission, Mr. Cornelio knew
at the
time of separation that his wife had an extramarital affair with
‘Tony’ and he developed suspicions that she
had known
Tony during the marriage and that he might be the father of all three
of their children. Notwithstanding these suspicions,
Mr. Cornelio
sought joint custody of all three children and entered into a consent
order that provided for his ongoing and important
involvement in
their lives and for the provision of child support. It was not until
access was interrupted and Ms. Cornelio commenced
these proceedings
seeking increased child support that the respondent began pursuing
this issue. … I can only conclude that
this motion by Mr.
Cornelio is a response to the current conflict with the applicant and
his unfortunate alienation from the children,
which may well be
temporary.
”
(My
emphasis)
[196]
In another Canadian case, which I mentioned earlier,
Saul
v Himel
(1994),
9 R.F.L. (4
th
)
419 (Ont. Gen. Div.), aff’d (1996) [
1994
CanLII 18262 (ON SC)
]
the husband sued the wife for damages on the basis of fraudulent and
negligent misrepresentation. In my view the background facts
are very
relevant to the present matter and I therefore deem it apposite to
quote extensively from the judgment in this regard:
“
2.
Saul and Himel were married on September 26, 1959, separated in or
about May 1982, and their divorce was made final on February
22,
1989. They thereafter executed a separation agreement on October 27,
1989. Himel bore four children during her marriage to
Saul, …
born in 1961, … born in 1962, … born in 1965, and
Kevin, born in 1973. During the marriage, Himel
had an extramarital
affair. It was determined almost twenty years later, in or about
December 1992, that the child Kevin was conceived
during that affair
and that Saul was not his natural father.
3.
On January 19, 1994, Saul had a statement of claim issued against his
former wife claiming damages in the amount of $200,000
for fraudulent
misrepresentation and damages in the amount of $200,000 for negligent
misrepresentation. The claim relates to the
expenses and child
support Saul paid for Kevin both before and after separation and
prior to his knowledge about Kevin's paternity.
Saul contends in his
statement of claim that he:
would
have continued to love him and care for him but not have assumed
completely the responsibilities of supporting and fathering
Kevin
from his birth and indeed would have insisted that the Defendant look
to the real father of the child for support or at least
assistance in
that regard.
4.
Himel did not tell her husband of her extramarital affair, nor did
she tell him of the possibility that he may not be Kevin's
father.
Both parties provided emotional and financial support for Kevin
during their marriage. After their marriage broke down,
Kevin
remained in the custody of his mother and Saul continued to provide
emotional and financial support to Kevin. It appears
that Saul became
aware, near the end of the parties' marriage, that his wife may have
had an extramarital affair and that he may
not be Kevin's biological
father.
He did not, however, take any steps to determine
parentage until December 1992, some ten years after the parties'
separation
.
5.
In the parties' separation agreement dated October 27, 1989, Saul
undertook to provide child support for Kevin. In the agreement
it was
acknowledged that the parties' children, including Kevin, were
children of the marriage as defined in the Divorce Act. Paragraph
3
of that agreement deals with the support for Kevin. The former wife
received $700 each month as child support for Kevin. This
was to
continue until the earlier of the events as set out in the agreement.
…”
[197]
The court dealt with the other elements of the claims, where after
the court considered
the issue of “
Public Policy
”
and concluded as follows at para 20 of the judgment:
“
20.
Do the former husband's actions offend public policy? The former
husband is effectively saying that every spouse has a duty
to tell
his or her spouse of any extramarital affair he or she may have had
during the marriage. It is unclear whether the former
husband thinks
that this must be done when it occurs, immediately thereafter, or
some time later. Marriage is still a private domain
and the public,
through the judicial system, should not be involved in scrutinizing
the behaviour of spouses in private matters
while they are not
involved in the judicial system. Saul chose to treat Kevin as a child
of the marriage until 1992. In the separation
agreement, Kevin is
referred to as a child of the marriage.
For
what appears to be purely monetary reasons, as opposed to moral
reasons, Saul has brought on this lawsuit against his former
wife.
Kevin was asked to take the paternity test, thereby dividing the
children as a family unit, perhaps creating embarrassment
for any or
all of them. Saul seeks to not only repudiate his ongoing support for
Kevin but asks for damages against his former
wife for the support
which was paid and was used, not for her benefit, but for the benefit
of Kevin. This, in my view, offends
public policy. The money paid was
for child support and not spousal support.
”
(My
emphasis)
[198]
Again I respectfully agree with the approach and principles as
discussed and enunciated
in the aforesaid case law. The irreparable
emotional damage this action caused to N, her relationship with the
plaintiff and the
whole family relationship, is very evident from the
totality of the evidence.
[199]
In addition to my findings
that the plaintiff did not prove his claim on the basis
of fraud, I
furthermore find that his claim is
contra bonos mores
and
against public policy and can for this reason also and/or in any
event not succeed.
Application
for Absolution of the Instance and the Costs thereof:
[200]
Earlier in the judgment I indicated that Mr Ploos van Amstel applied
on behalf of
the defendant for absolution of the instance at the end
of the plaintiff`s case, which application I dismissed. I ordered
that
the costs of the application were to stand over for later
adjudication.
[201]
Both Mr Ploos van Amstel and Mr Cronjé addressed me
comprehensively on the
merits and demerits of the application. Mr
Cronjé also filed written heads of argument in in further
support of his oral
arguments which he advanced on behalf of the
plaintiff in opposing the application.
[202]
I have already set out the plaintiff`s evidence in detail.
[203]
The test to be applied when considering an application for absolution
of the instance
at the end of end of a plaintiff`s case, is,
inter
alia,
set
out in the well-known judgment of
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(AD)
at 409 G – H. Harms JA (as he then was) dealt with the
aforesaid test in
Gordon
Lloyd Page & Associates v Rivera and Another
2001
(1) SA 88
(SCA)
at para [2]:
“
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403 (A)
at
409G - H in these terms:
'.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence

led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,

applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. …’
This
implies that a plaintiff has to make out a
prima facie
case
- in the sense that there is evidence relating to all the elements of
the claim - to survive absolution because without
such evidence no
court could find for the plaintiff…
As far as
inferences from the evidence are concerned, the inference relied
upon by the plaintiff must be a reasonable one,
not the only
reasonable one
... The court ought not to be concerned with
what someone else might think; it should rather be concerned with its
own judgment
and not that of another 'reasonable' person or court.
Having said this, absolution at the end of a plaintiff's case,
in the
ordinary course of events, will nevertheless be granted
sparingly but when the occasion arises, a court should order it
in
the interests of justice. …”
[204]
Credibility seldom arises when considering absolution of the instance
at the end
of the plaintiff`s case. In the matter of
Hartzer
v De Sousa
2015 JDR 1320 (GP), to which Mr Cronjé
referred, the court stated the following in this regard at para [10]
of the
judgment:
“
[10]   As
for the credibility of the appellant it cannot in my view, by any
stretch of imagination, be found that
the plaintiff's evidence is
either an utter fabrication or too vague and contradictory to
constitute proof of his claim for restitution
pursuant to a mutual
cancellation of the agreement (
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) 307 (T)).
In
deciding whether absolution should be granted or not, it must be
assumed, in the absence of special considerations, such as for

example that the evidence is inherently unacceptable, that the
evidence is true
(
Atlantic
Continental Assurance Co of SA v Vermaak
1973
(2) SA 525
(E)).
…”
[205]
In considering the application for absolution of the instance, I
deemed the following
principles set out and applied at para [11] of
the
Hartzer
-judgment, very applicable to the
matter
in casu
:
“
[11]
…The
real
issue
concerning
restitution
has
received preciously scant attention. This case involves not only
evidence but also, and more importantly so, the consideration
and
application of legal principles
flowing
from an agreed cancellation of contract (cf
Ruto
Flour Mills
(310C-E)
where it was held:
‘
In
a comprehensive case, such as the present one, where there is a
diversity of facts justifying different inferences, of which
some can
establish the plaintiff's case, the Court would be acting contrary to
the rules referred to, if it paused to consider
the value and
persuasiveness of the evidence at this stage. If the defendant wishes
the Court to do so, he should close his case.
The Court should hear
all the evidence and leave itself free to express its view of the
evidence for the plaintiff at the end of
the case.’)
”
(My
emphasis)
[206]
In
Brickhill
v Copper Sunset Trading 223 (Pty) Ltd t/a Retail
Crossings
Superstar
[2012]
JOL 28824
(GSJ)
at para [11] the court referred to and applied the following
additional principles:
[11]
The court has a
discretion whether to grant absolution from
the instance or not
. In exercising such discretion, it has to
determine whether it is in the interests of justice to bring the
litigation to an end.
Where the legal position is uncertain
the interests of justice are better served by the refusal of
absolution.
(My emphasis)
[207]
With regard to the last-mentioned principle to be applied when the
legal position
is uncertain, it is the Constitutional Court who
determined same in
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001]
ZACC 22
;
2001
(4) SA 938
(CC)
at para
[80]
:
[80]
… But where the factual situation is complex and the legal
position uncertain, the interests of justice will often
better be
served by the exercise of the discretion that the trial Judge has to
refuse absolution. If this is done, the facts on
which the decision
has to be made can be determined after hearing all the evidence, and
the decision can be given in the light
of all the circumstances of
the case, with due regard to all relevant factors. This has the merit
of avoiding the determination
of issues on the basis of what might
prove to be hypothetical facts. …”
[208]
The
court may also have regard to the possibility that the plaintiff ’s
case may be strengthened by evidence emerging
during the defendant’s
case. See
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T)
at 310 A – B.
[209]
When I applied the aforesaid test and principles to the evidence of
the plaintiff
and considered the nature of the legal principles which
stand to be adjudicated, I concluded that the application for
absolution
should be dismissed.
[210]
When the reserved costs of the application were argued at the
conclusion of the
trial, Mr Cronjé and Mr Ploos van Amstel
were
ad idem
that almost a whole court day was
previously spent on presenting arguments pertaining to the merits of
the application. It was the
first day (6 March 2018) of three court
days (6, 7 and 9 March 2018) to which the trial had previously been
postponed. I gave the
order relating to the outcome of the
application the morning of 7 March 2022, where after the trial
immediately continued with
the presentation of the defendant`s
evidence. No court time was consequently wasted for purposes of the
preparation for the application
by the parties and/or for purposes of
my consideration of the merits of the application.
[211]
In his written heads of argument filed for purposes of the arguments
on the merits
of the trial, the costs thereof and the reserved costs
of the application for absolution from the instance, Mr Cronjé
submitted
that the application was premised on the application of the
decision in
DE v RH
(the judgment by the
Constitutional Court on whether the cause of action based on adultery
still has a place in our law),
that I correctly dismissed the
application and that the defendant, as the unsuccessful party to the
application, should be ordered
to pay the costs of the
application.
[212]
Mr Cronjé referred to and relied on the judgment in
De
Klerk v Absa Bank Ltd and Others
2003
(4) SA 315
(SCA)
at para [1] where the Supreme Court of Appeal said the following:
“
[1]
Counsel who applies for absolution from the instance at the end of a
plaintiff's case takes a risk, even though the plaintiff's
case be
weak. If the application succeeds the plaintiff's action is ended, he
must pay the costs and the defendant is relieved
of the decision
whether to lead evidence and of having his body of evidence
scrutinised should he choose to provide it. But
time and time again
plaintiffs against whom absolution has been ordered have appealed
successfully and left the defendant to pay
the costs of both the
application and the appeal and with the need to decide what is to be
done next. The question in this case
is whether the plaintiff
has crossed the low threshold of proof that the law sets when a
plaintiff's case is closed but the
defendant's is not.
[213]
Mr Cronjé contended that the aforesaid remarks by the court
were a warning
to counsel (and parties) about the risks of attendant
costs orders when applications for absolution are brought at the
close of
a plaintiff`s case.
[214]
The Supreme Court of appeal made the abovementioned remarks in
paragraph [1] of
the judgment. In my view they were consequently made
as introductory remarks. Although I agree with Mr Cronjé that
the remarks
were clearly intended to be a warning, I do not interpret
the warning to constitute a general principle that an unsuccessful
application
for absolution from the instance at the close of a
plaintiff`s case will or should (always) be coupled with an adverse
costs order
against the unsuccessful defendant.
[215]
It
is trite that the usual order is
that
costs follow the event (or result), that is, the successful party
should be awarded his or her costs. However,
this
is subject to t
he
general principle regarding the award of costs which is well
settled
,
as again confirmed in
Wanderers
Club v Boyes-Moffat and Another
2012
(3) SA 641
(GSJ)
at 643 I – J:
“
It
is entirely a matter for
the
discretion of the court
,
which is to be exercised judicially upon a consideration of the facts
of each case, and in essence it is a matter of fairness
to both sides
(cf
Gelb
v Hawkins
1960
(3) SA 687 (A)
at
694A;
Graham
v Odendaal
1972
(2) SA 611
(A) at
616A; Cilliers
Law
of Costs
at
2.03 – 2.05).”
[216]
In
Law of Costs
, AC Cilliers, LexisNexis, Issue
41, October 2022 - SI 46 at paragraph 2.23A the following principles
are cited, specifically with
regard to applications for absolution
from the instance:
“
Absolution
from the instance
Another
illustration of the application of the general rule that success
carries costs is that an order of absolution from the instance

normally entitles the defendant to costs.
Where
absolution is sought unsuccessfully i.e. is not granted, the usual
order, it is suggested, ought to be that the costs are
to be costs in
the cause.
This
proposition is effectively supported by the decision of the Supreme
Court of Appeal in
Koukoudis
v Abrina
[
Koukoudis
and Another v Abrina 1772 (Pty) Ltd and Another
2016
(5) SA 352
(SCA)]
,
where the court said the following:
‘
[56]
At the end of the respondents’ case, the appellants applied
unsuccessfully for absolution from the instance. In paragraph
2 of
the order of the court
a
quo
,
the appellants were ordered to pay the costs of that application
jointly and severally, although each party was ordered to pay
its own
costs for the period that the matter had stood down to allow the
parties to prepare for the application. The appellants
argued that
they should be entitled to those costs as absolution ought to have
been granted. The trial judge had a discretion as
whether to grant
absolution. She probably exercised that discretion on an incorrect
factual basis, but it seems to me to be unnecessary
to deal with the
correctness of her decision in that regard as I see no reason why a
specific order as to costs in respect of the
absolution proceedings
need be made.
Applications
from the instance and their preparation all form part of the trial
proceeding and a specific order relating to those
costs seems
superfluous
.
The
appellants, however, suggested that each party should pay its own
costs relating to the period the matter stood down for the

preparation of the application for absolution. That order operates in
favour of the respondents and so, if that’s what the
appellants
wish, I have no difficulty in granting the request.’” (My
emphasis)
[217]
I respectfully agree with the last mentioned principle enunciated by

the Supreme Court of Appeal. Therefore, and in exercising my
discretion in view of the facts and circumstances of this trial, I

deem it appropriate that the costs of the application for absolution
of the instance, are to be costs in the action.
The
reserved costs of the postponement of the trial on 12 December 2017:
[218]
On 13 September 2017, after the conclusion of the plaintiff`s
evidence, the trial
was postponed by agreement between the parties to
12, 13 and 15 December 2017.
[219]
However, the defendant was admitted to hospital on 4 December 2017,
which was confirmed
by a Medical Certificate, dated 6 December 2017.
The parties` respective attorneys of record communicated with each
other regarding
the situation and on 11 December 2017 my Registrar
received an email which advised that due to the defendant`s
incapacity to attend
the trail, the matter will be postponed by
agreement between the parties.
[220]
On 12 December 2017 I consequently issued the following order by
agreement between
the parties:
“
1.
The matter is postponed to 6, 7 & 9 March 2018.
2.
The costs of the postponement to stand over for later adjudication.”
[221]
During argument Mr Cronjé submitted that the defendant should
be ordered
to pay the wasted costs occasioned by the postponement on
!2 December 2017. He submitted that the plaintiff accepted the
bona
fides
of the defendant with regard to her incapacity and her
consequent inability to attend the trial without questioning same and
agreed
to the postponement. The postponement was, however, not at the
instance of the plaintiff and therefore, in exercising my discretion

regarding costs, I should order the defendant to pay the wasted
costs.
[222]
Mr Cronjé referred to and relied on the judgment in
Manong
and Associates (Pty) Ltd v City of Cape Town and Another
2011
(2) SA 90
(SCA)
at para [95]:
[95]
We now address the costs of the postponement occasioned by the
ill-health of the company's senior counsel hours before the
scheduled
hearing of the appeal on 20 August 2010. The heads of argument had
been drawn by junior counsel. It is necessary to record
that on that
day junior counsel representing the company informed the court that
the company insisted that it be represented by
the senior counsel it
had retained, and his instructions were that he should not
present the company's case on his own. I
n
Cape
Law Society v Feldman
1979
(1) SA 930
(E)
the
respondent was confined to hospital, too ill to attend the heari
ng,
necessitating a postponement. In that case, there was a dispute
concerning liability for the wasted costs. The court, in dealing
with
the contention that the award of costs should depend on the outcome
of the case on the merits, stated the following (at
934A –
C):
'Because
of the enforced absence of the respondent this case has had to be
postponed
sine die
.
To that substantial extent
the respondent's rights have been safeguarded and to that extent he
has benefited but to that same extent
the applicant has been
prejudiced. It would be manifestly inequitable to prejudice the
applicant further by placing it in
a potentially vulnerable position
of having to pay the costs of postponement if it should lose the main
case
.'” (My emphasis)
[223]
Mr Ploos van Amstel, on the other hand, submitted that, based on the
assumption
that the plaintiff will be unsuccessful with his claim, he
should bear the wasted costs occasioned by the postponement. In this

regard Mr Ploos van Amstel relied on the judgment in
Van
Staden v Union and South-West Africa Insurance Co. Ltd
1972(1)
SA 758 (ECD). In the said matter the wasted costs occasioned by a
postponement were reserved in circumstances where
the plaintiff was
unable to attend court after he suddenly and unexpectedly developed a
venous thrombosis which necessitated that
he should remain in bed.
The liability for the said wasted costs was determined at the
conclusion of the trial after the plaintiff
was successful in his
claim and has been awarded the costs of the action. The court held as
follows at 760 D – F:
“
If
that is so then in my judgment there is no proper basis in equity or
principle for holding in the present case that the plaintiff
should
pay the wasted costs of postponement. That postponement was caused by
the fault of neither party but it was the unsuccessful
defendant who,
by persisting in his defence, made it necessary for the plaintiff
to litigate in the first place and, during
the course of that
litigation the plaintiff was obliged, through no default or fault on
his part, to incur the costs of a postponement.
Such costs were in my
view part of the overall expense to which the plaintiff was put in
prosecuting a lawful claim which the defendant
resisted and which
expense would not have been incurred if the defendant had
initially paid the damages which it has now been
held liable to pay…”
[224]
The aforesaid
Van
Staden
-judgment
was not followed in the judgment of this court in
Grobbelaar
v Snyman
1
975
(1) SA 568
(O).
As a result of heavy rains the defendant in the
Grobbelaar
-judgment
was cut off on his farm from the outside world by floods and
therefore could not attend the trial on the date of set down.
The
parties in the circumstances agreed that the case should be
postponed
sine
die
,
but an agreement could not be reached as to who should pay the wasted
costs as a result of the postponement. IN deviating from

the
Van
Staden-judgment,
the court held as follows at 570 H – 571 D:
“
ADDLESON,
R., het egter in
Van
Staden
se
saak die kwessie van die aanspreeklikheid vir die betaling van koste
wat verkwis is as gevolg van 'n uitstel wat sonder enige
skuld van
die partye onvermydelik was, slegs vanuit die oogpunt van die
uiteindelik-triomfantlike partye benader. Na my oordeel
is so 'n
benadering te beperk en eng. Billikheidsoorwegings geld ook by die
bepaling van aanspreeklikheid vir betaling van verkwiste
koste, en
aangesien 'n kostebevel in wese billik teenoor albei partye moet
wees, behoort die aangeleentheid vanuit die oogpunte
van beide
partye beoordeel te word. Die teenwoordigheid van die verweerder
by die verhoor van die saak, was nie die eiser
se verantwoordelikheid
nie. Hy moes net sorg dat hy en sy getuies daar teenwoordig en
slaggereed is. Dit het hy gedoen. Dit is
klaarblyklik van groot
belang vir 'n eiser dat sy vordering so spoedig moontlik bereg word.
Omdat die verweerder in die onderhawige
geval egter onskuldiglik
afwesig was, kon eiser nie met die verhoor van sy eis voortgaan ten
nadele van die verweerder nie en moes
die verhoor noodgedwonge
sine
die
uitgestel
word.
Tot
daardie belangrike mate is die verweerder se regte deur die uitstel
van die saak beskerm en is hy daardeur bevoordeel, maar
is die eiser
daardeur tot dieselfde mate benadeel. Om vir die eiser nog verder te
benadeel deur hom in die gevaar te stel om, indien
hy uiteindelik in
die geding die onderspit delf, die verkwiste koste van die uitstel
ook nog te moet dra, is om die regverdig-gebalanseerde
skaal van
billikheid met die skawende juk van onbillikheid te vervang. …”
The
court held
that
the defendant should be ordered to pay the wasted costs.
[225]
The
Van
Staden
-judgment
was also not followed in
Westbrook
v Genref Ltd
1997
(4) SA 218
(D).
Instead, the
Grobbelaar
-judgment
was followed.
In
the
Westbrook
-judgment
a postponement was sought by the defendant because of the death of an
important witness on the day before the trial was
due to start. The
court said the following at 221 J – 222 D:
“
I
am inclined to the view that the approach taken by Addleson J in
Van
Staden's
case
was somewhat narrow. There is reference to the 'rash litigant'
and there is reference to the fact that the unsuccessful
defendant,
by persisting in his defence, made it necessary for the
plaintiff to litigate in the first place.
My
approach to the situation is that, in the ordinary course of events,
a party is permitted to litigate at the risk of payment
of costs. If
his conduct has been such as to demonstrate that his claim or
defence was vexatious or totally without substance,
then comes the
time for a special order, that usually being costs on the attorney
and client scale. But, in the ordinary course
of events, the
unsuccessful litigant, who has had a reasonable claim or defence, one
in which triable issues are raised, should
not be mulcted in
additional costs. It is here that I see the wasted costs in issue in
this case as being additional costs.
In
the exercise of my discretion, I consider that the approach of M T
Steyn J was correct.
One must see the situation as one in
which, although there was no fault on the part of the defendant, it
is nevertheless a case
in which the plaintiff was ready to proceed,
and one in which the plaintiff is being prejudiced by the delay.
I am inclined
to exercise my discretion in the plaintiff's favour
.
(My emphasis)
[226]
I respectfully agree with the last-mentioned approach.
Costs
of the action:
[227]
Other than for the specific costs which I dealt with above, there is
in my view
no reason why the general rule that costs follow the
outcome of litigation, should not be applicable in this instance. No
arguments
to the contrary were advanced by counsel either, in my view
correctly so.
Order:
[228]
For the aforesaid reasons I made the order cited at the beginning of
the judgment.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv.
PR Cronjé
Instructed
by
:
Conradie
Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
Adv.
PC Ploos van Amstel
Instructed
by:
Stefan
de Beer & Co Attorneys
BLOEMFONTEIN