Brief Summary

Family Law — Paternity — DNA testing — Application for order compelling mother and minor child to undergo DNA testing to establish paternity of child for entitlement to death benefits — First respondent alleging uncertainty regarding paternity — Appellants contending that deceased accepted child as his and asserting rights to privacy — Court a quo ordering DNA testing based on best interests of the child and need for certainty regarding paternity — Appeal reinstated and upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the Gauteng Local Division, Johannesburg, against an order granted in motion proceedings compelling a mother and her minor child to undergo DNA testing to determine whether a deceased man was the child’s biological father. The dispute arose in the context of the distribution of a death benefit administered by a pension fund.

The appellants were M (the mother) and M in her capacity as mother and natural guardian of Z (the minor child). The respondents were D (the deceased’s mother) and the Setshaba Pension Fund. The first respondent sought to prevent payment of the deceased’s death benefit to the minor child until paternity had been established by scientific testing.

Procedurally, the first respondent first obtained an urgent interim interdict restraining the pension fund from paying out the death benefit pending determination of further relief. In the subsequent proceedings (referred to as “Part B”), the court a quo (Canca AJ) ordered the appellants to submit to DNA testing. That order was appealed. A substantive application to reinstate the appeal was brought and was unopposed; the appeal was reinstated and then determined on the merits.

The general subject matter concerned whether there was a sufficient legal and factual basis to compel paternity testing, balancing considerations of best interests of the child, privacy, and the proper administration of a substantial death benefit.

2. Material Facts

The undisputed factual background accepted for purposes of the appeal included that M and the deceased, SD, were involved in an intimate relationship from approximately November 2005 until mid-2010. The minor child was born on 28 December 2008, while the relationship was still ongoing. SD died in a motorcycle accident on 22 February 2015. Shortly before his death he was permanently employed, and his employment benefits included a death benefit administered by Setshaba.

It was also common cause that SD registered the child’s birth in terms of section 10 of the Births and Deaths Registration Act 51 of 1992, and that an unabridged birth certificate recorded SD as the father and M as the mother. On the papers, it was further accepted (for purposes of deciding factual disputes under the applicable motion-proceedings rule) that SD had acknowledged the child as his son during the early years of the child’s life, and that he provided support at least for a period, with later support being sporadic after the relationship ended.

Following SD’s death, the first respondent established that Setshaba had determined the minor child to be a dependent under its rules and thus entitled to the death benefit. The first respondent then approached Setshaba raising suspicions about paternity. Setshaba afforded the first respondent a period of three months (from 17 June 2015) to produce conclusive proof that the minor child was not SD’s child.

The disputed facts centred on the existence and strength of any uncertainty regarding paternity. The first respondent alleged that M was unaccounted for for about three months during 2008, that family members questioned the child’s paternity because of physical appearance, and that SD had later expressed doubts to her and to others, and had welcomed maintenance proceedings as a forum to resolve paternity. M disputed these allegations and characterised them as speculative and based on hearsay. She maintained that SD accepted the child as his, registered him, lived with him as a family unit, and maintained contact and some support until his death.

Because the matter proceeded on affidavit, and because the appeal court regarded the respondent’s denials as not being untenable, the appeal court applied the rule that the matter had to be decided on the version most favourable to the respondent resisting relief where genuine disputes of fact existed, as articulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.

3. Legal Issues

The central legal questions were whether, on the papers, there existed a genuine and substantial uncertainty about the minor child’s paternity, and if so, whether it was in the best interests of the child to compel DNA testing in order to establish paternity with scientific certainty.

The dispute required a combination of the application of law to fact and an evaluative inquiry. The court had to determine whether the factual material established sufficient doubt to justify invoking the court’s inherent power as upper guardian of children, and then had to evaluate whether an order compelling scientific testing served the child’s best interests, taking into account competing rights and interests such as privacy and bodily integrity, and the civil standard of proof.

Although issues of locus standi and the reviewability of Setshaba’s stance were raised before the court a quo, these were not pursued on appeal. The appeal proceeded on the footing that the first respondent had standing and that Setshaba’s position was conditional and not reviewable in the posture presented.

4. Court’s Reasoning

The appeal court located the applicable legal principles in the jurisprudence of the Supreme Court of Appeal dealing with scientific testing in paternity disputes, particularly recognising that a court has an inherent jurisdiction, as upper guardian of minor children, to order scientific tests where this is required by the child’s best interests. At the same time, the appeal court emphasised that the propriety of ordering DNA testing is not governed by a general rule that “truth” necessarily overrides privacy or bodily integrity; rather, it must be determined case by case, with careful attention to the child’s particular circumstances.

In this regard, the appeal court relied on the approach stated in YM v LB 2010 (6) SA 338 (SCA), which rejected a generalised proposition that discovery of scientific truth should prevail in all cases. The appeal court further adopted the view that civil disputes are ordinarily determined on a balance of probabilities, and that it is not the function of a court in every paternity-related dispute to insist on “scientific proof” where the circumstances do not justify it.

Applying these principles, the appeal court assessed whether there was, on the accepted facts, a genuine uncertainty about paternity. The court held that the court a quo had mischaracterised M’s response as consisting of bare denials and had placed undue weight on the first respondent’s assertions. On the proper application of Plascon-Evans, the appeal court accepted as determinative that M and SD were in an established relationship at the time of conception and birth, that SD formally registered the child as his, that the unabridged birth certificate recorded him as the father, and that SD acknowledged the child during the early years and provided some support even after the relationship ended.

The appeal court then considered the nature of the doubt raised by the first respondent. It found that the alleged reasons for doubt were weak and largely subjective, being based mainly on physical resemblance and the allegation that M disappeared for a period. In the appeal court’s assessment, there were no sufficiently objective facts demonstrating a substantial basis to place paternity in issue at the level required to justify compelled testing, particularly where SD himself had not taken any steps over a long period to challenge or clarify the legal relationship.

The court also compared the matter with Seetal v Pravitha and Another NO 1983 (3) SA 827 (D), where doubts rooted in appearance and unsubstantiated adultery allegations were treated as inadequate to compel testing. The appeal court considered that the present dispute was likewise driven by unsubstantiated suspicion rather than concrete facts.

On the best interests inquiry, the appeal court rejected the notion that the first respondent’s application was genuinely motivated by the child’s emotional welfare or by the need to facilitate bonding with the paternal family. It reasoned that nothing had prevented the first respondent from cultivating a relationship with the child during the child’s life; the litigation was triggered by the size of the death benefit. The appeal court concluded that, in the absence of substantial and substantiated doubt about paternity, compelling the child to undergo paternity testing at that stage would not serve the child’s best interests.

The court also addressed section 37 of the Children’s Act 38 of 2005, which contemplates scientific testing in paternity disputes and requires that, where a party refuses to submit to testing, the court must warn that party of the possible credibility consequences. The appeal court noted that section 37 was not relied upon in the founding papers, was mentioned only later, and that the court a quo did not issue the warning contemplated by the section. While the appeal court’s ultimate decision rested on the absence of genuine uncertainty and the best-interests assessment, it treated the handling of section 37 as further context demonstrating that the case had not been approached on a proper footing.

5. Outcome and Relief

The appeal court upheld the appeal with costs. The order of the court a quo compelling M and the minor child to submit to DNA testing was set aside.

In substitution, the appeal court ordered that the first respondent’s application (seeking to compel DNA testing) was dismissed with costs.

Cases Cited

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

LB v YD 2009 (5) SA 463 (NGP).

Seetal v Pravitha and Another NO 1983 (3) SA 827 (D).

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Legislation Cited

Births and Deaths Registration Act 51 of 1992, section 10.

Children’s Act 38 of 2005, section 37.

Rules of Court Cited

No specific rules of court were cited by name; the motion-proceedings approach to factual disputes was applied through the principle in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Held

The appeal court found that the first respondent did not establish a genuine and substantiated uncertainty regarding the minor child’s paternity on the papers as properly evaluated in motion proceedings. The evidence relied upon to cast doubt on paternity was regarded as weak, largely subjective, and insufficiently supported by objective facts, particularly in light of the deceased’s formal registration of the child and his earlier acknowledgment.

The court further found that compelling the minor child to undergo DNA testing in these circumstances would not be in the child’s best interests, and that the litigation was not shown to be driven by the welfare of the child rather than the financial consequences of the death benefit.

Accordingly, the order compelling DNA testing was set aside and the underlying application was dismissed, with costs orders granted against the first respondent both on appeal and in substitution for the court a quo’s order.

LEGAL PRINCIPLES

A court has an inherent power as the upper guardian of minor children to order scientific testing (including DNA testing) in paternity disputes, but that power is exercised only where it is justified on the facts and where it is in the best interests of the particular child.

Whether the discovery of scientific truth should prevail over rights such as privacy and bodily integrity is not governed by a general rule. The appropriateness of compelled testing must be assessed case by case, focusing on the child’s position and circumstances rather than abstract preferences for certainty.

Civil courts generally determine paternity-related disputes on a balance of probabilities, and scientific proof is not automatically required. A DNA test is more readily justified where there is a genuine uncertainty about paternity supported by material facts, rather than mere suspicion or subjective impressions.

In motion proceedings where material factual disputes arise, the matter is decided in accordance with the approach in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), generally favouring the respondent’s version unless the denials are untenable or not creditworthy.

Section 37 of the Children’s Act 38 of 2005 contemplates scientific testing where paternity is in issue and provides that a court must warn a refusing party of potential credibility consequences; however, the presence of the section does not displace the need for a threshold showing of genuine, substantiated doubt and a best-interests justification for compelled testing.

M and Another v D and Another (A5020/2016) [2018] ZAGPJHC 602 (24 October 2018)