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[2010] ZASCA 106
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Y D (Now M) v L B (465/09) [2010] ZASCA 106; 2010 (6) SA 338 (SCA) ; [2011] 1 All SA 501 (SCA) (17 September 2010)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
: 465/09
In the
matter between:
Y D
(NOW M) Appellant
and
L B Respondent
Neutral citation: YM v LB (465/09)
[2010] ZASCA 106
(17 September
2010
)
Coram:
Harms
DP, Lewis, Ponnan JJA and Ebrahim and K Pillay AJJA
Heard: 8
September 2010
Delivered 17 September 2010
Summary:
Scientific
tests on a child to determine paternity should not be ordered where
paternity has been shown on a balance of probabilities.
ORDER
On appeal from: North Gauteng High Court (Pretoria) (Murphy J sitting
as court of first instance).
1 The appeal is upheld with costs including those of two counsel.
2 The order of the high court is replaced with:
‘The application is dismissed with costs.’
JUDGMENT
LEWIS J (HARMS DP, PONNAN JA AND EBRAHIM AND PILLAY JJA concurring)
[1] The appellant, Mrs Y M (M), appeals against an
order that she and her daughter, Y, submit to DNA testing to
determine whether
Mr L B (B), the respondent, is the biological
father of Y. The order was sought by B who claimed, if the tests
proved that he was
indeed the father, in addition that he be given
full parenting rights. The high court ordered that M submit herself
and Y to DNA
tests within 30 days of the order and postponed the
other relief sought sine die. The appeal against the order is with
the leave
of this court. On appeal B did not file heads of argument;
nor was there any appearance for him.
[2] Murphy J in the high court considered in
considerable depth the cases – often in conflict with one
another – that
have dealt with orders to submit to blood tests
to determine paternity. These, and cases in other countries dealing
with orders
to submit to scientific testing to determine paternity,
were also discussed at length by Didcott J in
Seetal
v Pravitha.
1
The high court also considered the possible changes wrought by the
provisions of the Children’s Act 38 of 2005. The judgment
of
Murphy J is reported.
2
I do not propose to traverse the same material because it is not
warranted on the facts. I shall revert to the principles on which
the
order was made, but shall first set out the facts which were largely
not in dispute.
[3] M and B commenced a sexual relationship in
February 2006. They started living together in October of that year
and became engaged
in November. B told M at the end of the year that
he would be going to work first elsewhere in the country, and then
abroad, for
a short period the following year. Accordingly in March
2007 she went to stay for what was thought to be the period of his
absence
in Musina, where her parents lived.
[4] In fact B did not go abroad. He frequently
phoned her – on her version under the influence of alcohol –
and she
became disillusioned with the relationship. She alleged that
before she had moved to Musina he also drank heavily and returned
home inebriated late at night.
[5] Late in March 2007 M discovered that she was
pregnant. She was certain that B was the father and alleged that it
was not actually
ever in issue save for one occasion when he denied
paternity when speaking to her over the phone one night –
apparently under
the influence of alcohol. But he retracted the
denial – which he could not even remember – the following
morning.
[6] Although B also denied his paternity in a
letter sent by his attorney to M later, after the child’s
birth, his conduct
and other correspondence with her show
unequivocally that he believed that he was the father. A telling
factor is that he paid
R1 000 into M’s bank account in each of
April, May and July 2007, which is consistent with his belief that he
was the father
of the unborn child. Most importantly, in his
founding affidavit B stated that he believed that he was Y’s
father and wished
to develop a relationship with her.
[7] Despite her certainty that B was the father of
the child M decided to break the engagement. She told him this when
he visited
Musina in April 2007. They agreed to remain in contact.
She revived a relationship with a former boyfriend (Mr M) and they
became
engaged in June and married in July that year. She told B that
they would have to make arrangements (presumably about support and
access) after the child’s birth.
[8] In September 2007 M phoned B and advised him
of the expected date of birth (mid-November). In October he sent a
message to her
asking her to keep in touch and saying that he had had
difficulty contacting her by telephone. She responded and asked him
to send
a letter with his proposals (again one assumes as to support
and access).
[9] Y was born on 8 November. M phoned B the day
she was discharged from hospital. He wanted to see Y. She said she
would contact
him in this regard at a later stage. But then two days
later his attorney sent the letter referred to stating that he
strongly
denied paternity but was willing to pay for blood and DNA
tests to determine the issue.
[10] M, who had previously been willing to allow B
to be part of Y’s life, responded through an attorney saying
that he would
not be afforded any parental rights and would not be
bound by any obligations to Y. B did an about turn. The next letter
from his
attorney stated that B was ‘100 per cent’
certain that he was Y’s father but that he wanted M and Y to
undergo
blood tests. She refused to comply – hence his
application for an order to compel testing.
[11] As Murphy J himself pointed out the minor
disputes of fact must be determined having regard to M’s
averments and denials
unless these are untenable.
3
These disputes were essentially as to dates and exchanges between the
parties. In fact, B did not ever deny paternity in his affidavits:
he
simply sought scientific certainty. And the high court’s
finding that M may have been intimate with her husband, M, at
the
time of Y’s conception is unwarranted given that the only
evidence for this was B’s statement in his replying affidavit
that he had heard from a friend that M had commenced a relationship
with M at the time when conception had occurred.
[12] Paternity was thus not actually in dispute.
And accordingly the high court should not have ordered M and her
daughter to undergo
DNA testing. Indeed there was no reason to order
M herself to be tested: her maternity could not have been in doubt!
[13] That brings me to the principles on which the
high court made its order. First, as I have already said, the issue
of paternity
in this case was determinable on a balance of
probabilities. What B asked for was scientific proof –
something to which he
was not entitled. No doubt there are cases
where there is genuine uncertainty as to paternity and a DNA test
should be ordered
for the child in question. It is within the
inherent power of a court, as the upper guardian of children, to
order scientific tests
if this is in the best interests of a child,
as Murphy J found.
4
And indeed s 37 of the Children’s Act anticipates the use of
scientific tests to determine paternity. It provides that where
paternity is in issue in legal proceedings and a party refuses to
submit to ‘scientific tests’ the court must warn
him or
her of the ‘effect which such refusal might have on the
credibility of that party’. But this is not a case in
which
that inherent power need have been invoked given that paternity was
not disputed.
[14] Second, the high court concluded that ‘truth
is a primary value in the administration of justice and should be
pursued,
if not for its own sake, then at least because it invariably
is the best means of doing justice in most controversies’. And:
‘Where we come from and who we are, for most people, are
questions within the realm of the sacred.’ The judge continued:
‘to exclude reliable scientific evidence because it involves a
relatively minor infringement of privacy more often than
not will
harm the legitimacy of the administration of justice’.
5
He concluded:
6
‘
In short, I agree with
those judges and commentators who contend that as a general rule the
more correct approach is that the discovery
of truth should prevail
over the idea that the rights of privacy and bodily integrity should
be respected . . . . I also take the
position . . . that it will most
often be in the best interests of a child to have any doubts about
true paternity resolved and
put beyond doubt by the best available
evidence.’
[15] It is clear, in my view, that the rights to privacy and bodily
integrity may be infringed (by a procedure ordered by a court
in the
exercise of its inherent jurisdiction) if it is in the best interests
of a child to do so. These rights, like others enshrined
in the
Constitution, may be limited where it is reasonable and justifiable,
applying the criteria in s 36(1) of the Constitution.
As I have said
in this case it is not, but in others it might well be justifiable to
order blood or DNA tests.
[16] However, whether the discovery of truth
should prevail over such rights is a matter that should not be
generalized. As Didcott
J said in
Seetal
7
it is not necessarily always in an individual’s interest to
know the truth. In each case the court faced with a request for
an
order for a blood test or a DNA test must consider the particular
position of the child and make the determination for that
child only.
The role of a court, and its duty, is to determine disputes in civil
matters on a balance of probabilities. It is not
a court’s
function to ascertain scientific proof of the truth.
[17] The appeal is upheld with costs including those of two counsel.
The order of the high court is replaced with:
‘The application is dismissed with costs.’
____________
C H Lewis
Judge of Appeal
APPEARANCE
APPELLANT: Ms K I Foulkes-Jones SC
(with her S Mentz)
Instructed by Davel de Klerk Kgatla Inc,
Pretoria
Naudes , Bloemfontein.
1
1983 (3) SA 827
(A).
2
LB v YD
2009
(5) SA 463
(NGP). The judgment of the high court refusing an
application for leave to appeal is also, unusually, reported in the
same volume
at 479.
3
The so-called
Plascon
Evans
principle:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
4
Para 22.
5
Para 21.
6
Para 23.
7
Above 864G-865C.