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Dreyer v Botha (4421/08) [2009] ZAGPPHC 50; 2009 (5) SA 479 (GNP) (14 May 2009)

80 Reportability
Family Law
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Brief Summary

Family Law — DNA Testing — Application for leave to appeal against order for DNA testing to determine paternity — Respondent contended that the court erred in prioritizing the applicant's right to know over her privacy rights — Court held that the best interests of the child and the need for certainty regarding paternity justified the order for testing — Appeal dismissed, with the court finding no merit in the grounds raised by the respondent.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns an application for leave to appeal brought in the North Gauteng High Court, Pretoria. The application sought leave to appeal against an earlier order compelling the taking of DNA (or blood) tests to determine the paternity of a minor child.


The parties were Yolinde Dreyer (Moller) and Lourens Marthinus Botha. In the underlying proceedings (decided on 19 November 2008), Dreyer was the applicant who obtained an order requiring Botha and the minor child to submit to DNA testing in order to determine whether Dreyer was the child’s biological father. In the present proceedings, Botha (described by the court as the applicant for leave to appeal) sought to challenge that earlier order.


The procedural history was therefore that an initial substantive order compelling DNA testing had been granted, followed by this subsequent interlocutory process in which the unsuccessful party sought leave to appeal. The judgment is confined to whether leave to appeal should be granted, not to a reconsideration of the merits as if on appeal.


The dispute’s subject-matter falls within parentage and parental responsibilities under the Children’s Act and at common law, and more specifically concerns the permissibility and appropriateness of compulsory scientific testing to resolve contested paternity, including the proper balancing of privacy interests against the administration of justice and the child’s interests.


2. Material Facts


The court proceeded from the fact that, on 19 November 2008, it had ordered the respondent (the mother) and the minor child to submit to DNA tests aimed at determining whether the original applicant was the child’s biological father. The present judgment did not revisit the evidentiary record in full, but addressed the factual premises that were material to whether the earlier order was justifiable and whether any appeal would have reasonable prospects of success.


A central, undisputed contextual fact was that the child was born during the subsistence of the mother’s marriage to another man (her husband). As a consequence, the court accepted that the common-law presumption pater est quem nuptiae demonstrant applied, meaning the husband was rebuttably presumed to be the child’s father unless and until rebutted by a competent court.


The court also treated as material that the child’s paternity was contested and that the parties had made contradictory statements bearing on paternity. The mother had, on at least one occasion, denied the original applicant’s paternity and refused him access to the child; in other instances she was said to have admitted his paternity. The court accepted that these contradictions contributed to the inability to resolve paternity without reliable scientific proof.


On the disputed question of the timing of intimacy and possible conception, the court noted that the evidence was contradictory and that the exact date of conception had not been medically established. Although there was an indication that the child was born seven months after the original applicant and the mother ceased intimacy, the court did not regard that as dispositive in light of the denial of paternity and the unresolved factual uncertainty.


Finally, the court accepted as relevant (and as addressed in the earlier judgment) that criticisms of the original applicant’s past conduct—such as limited contact with the child or limited maintenance—were not decisive at this stage, particularly given the court’s view that the dispute itself and the mother’s conduct had influenced events. The judgment treated those matters as more appropriately evaluated once paternity was reliably established.


3. Legal Issues


The central questions were whether the mother had shown reasonable prospects that an appeal would succeed against the earlier order compelling DNA testing, and whether there was a sufficient basis to justify appellate reconsideration.


Within that broad enquiry, the issues included whether the High Court had the power—whether as upper guardian of minors and/or under its inherent jurisdiction—to compel non-consenting persons to undergo DNA testing in a contested paternity dispute. This raised a question involving the application of constitutional and statutory norms to the procedural and substantive management of litigation involving parentage and children.


A further legal issue concerned the correct approach to balancing competing rights and interests, namely the privacy rights of a non-consenting adult, the interests of truth-finding and the administration of justice, the statutory recognition of the position of unmarried fathers, and the constitutional and statutory emphasis on the best interests of the child as paramount in matters concerning the child.


The court also had to determine whether statutory mechanisms—particularly the presumption and adverse inference contemplated in sections 36 and 37 of the Children’s Act—were applicable and sufficient in the circumstances, especially given that the child was born in wedlock and thus subject to the common-law presumption of paternity in favour of the husband.


4. Court’s Reasoning


The court approached the application by analysing the various grounds of appeal advanced in the notice of application for leave to appeal, and by assessing whether any of them disclosed a realistic likelihood that another court would reach a different conclusion.


In relation to the primary challenge—that privacy and the child’s interests should prevent compelled testing—the court reiterated that the underlying judgment had engaged in a conscious balancing of competing interests. It emphasised that while the best interests of the child are paramount, they are not the only factor, and that the circumstances can justify requiring privacy rights to yield, within reasonable limits, to the need to discover the truth in the interests of justice. The court considered that its approach aligned with M v R 1989 (1) SA 416 (O), read in the light of constitutional adjudication, and it saw no realistic prospect that a higher court would find the balancing exercise to have been wrongly undertaken.


The court placed weight on the statutory context under the Children’s Act, particularly the increased recognition of the rights of unmarried fathers. It reasoned that section 26 contemplates that a person claiming to be a biological father, where the mother does not agree, must apply to court for an order confirming paternity. In the court’s view, this statutory architecture underscored the need for legal certainty about status before parental rights and responsibilities could follow, and it supported the relevance of scientific testing as a reliable means of resolving disputed paternity. The court rejected contentions that it had impermissibly treated parental rights and responsibilities as dependent on proof of biological paternity, explaining that the statutory scheme required paternity determination before the further inquiry into the content of rights and responsibilities (including under section 21(3)) could properly proceed.


On the argument that the court failed to apply the paramountcy of the child’s interests under section 9 of the Children’s Act and section 28(2) of the Constitution, the court held that the judgment repeatedly treated the child’s interests as paramount. It specifically referred to its prior conclusion that it would be in the child’s best interests for paternity to be scientifically determined at an early stage, and therefore found no basis to contend that the proper constitutional and statutory emphasis had been overlooked.


The court also rejected the contention that it had made improper assumptions about concealing the truth from the child. It clarified that its reasoning was not that a lack of scientific proof would “automatically” lead to concealment. Rather, the decisive concern was that absent scientific verification, paternity would remain contested, potentially for some time, and the continuing uncertainty could carry stigma and would impede a court from determining the nature and extent of any financial or other responsibilities owed to the child.


A significant component of the court’s reasoning addressed the statutory presumption in section 36 and the adverse inference in section 37 of the Children’s Act. While the earlier judgment had taken the view that these mechanisms would be insufficient to satisfy the applicant’s need for certainty, the court in the leave judgment accepted a more pointed submission that section 36 did not apply at all in the present circumstances. It reasoned that section 36 arises in proceedings where it is necessary to prove that a particular person is the father of a person born out of wedlock, whereas the child here was born in wedlock, meaning the operative presumption was the common-law pater est quem nuptiae demonstrant. On that basis, section 36 could not provide a route to establishing the applicant’s paternity, and section 37’s adverse inference could not, on its own, resolve the contest.


The court further reasoned that as long as the child was born during the marriage, the husband remained rebuttably presumed to be the father until rebutted and altered by an order or declaration of a competent court, citing Park v De Necker 1978 (1) SA 1060 (N). It considered that this reality strengthened the justice of permitting the original applicant to attempt to rebut the presumption through scientific evidence. The court noted that even if the mother were to admit the applicant’s paternity, that might not be sufficient to rebut the presumption, and the attitude of the presumptive father (the husband) was not on record. Against that background, the court viewed blood or DNA testing as the only “conceivable reliable evidence” for rebutting the presumption in these circumstances.


Regarding the argument that uncertainty in the law itself justified leave to appeal, the court held that mere acknowledgement that the law had previously lacked unanimity did not, without more, provide a ground for appeal. It identified the potentially contentious question as whether the court’s inherent jurisdiction extends to ordering non-consenting adults to submit to testing, but held that decisions denying such jurisdiction had been overtaken by constitutional and statutory developments recognising the rights of unmarried biological fathers. The court considered that the facts disclosed a clear need for effective adjudication of the dispute in order to determine the applicant’s rights and responsibilities in relation to the child.


5. Outcome and Relief


The court dismissed the application for leave to appeal.


On costs, neither counsel made submissions. The court stated that ordinarily costs should follow the result and that, given the issues at stake, costs for two counsel were justified. However, it hesitated to make a final costs order without the benefit of submissions. It therefore ordered that either party could, on notice to the other, approach the court in chambers to make additional submissions on costs. Failing such further submissions within five days, the mother (as the applicant for leave to appeal) would be liable for the costs of the application, including the costs of two counsel.


Cases Cited


M v R 1989 (1) SA 416 (O)


Park v De Necker 1978 (1) SA 1060 (N)


Legislation Cited


Children’s Act 2005, including sections 9, 21(1)(b), 21(3), 26, 36, and 37.


Constitution of the Republic of South Africa, 1996, section 28(2).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that there were no reasonable prospects that another court would come to a different conclusion on the correctness of the order compelling DNA testing. It found that the earlier judgment had properly balanced the competing interests implicated by compelled testing, including the privacy interests of a non-consenting adult, the demands of truth-finding and the administration of justice, the statutory recognition of the position of unmarried fathers, and the paramountcy of the child’s interests.


It further held that reliance on the presumption in section 36 of the Children’s Act was misplaced because the child was born in wedlock, rendering the section 36 presumption inapplicable and leaving the common-law presumption pater est quem nuptiae demonstrant as the operative presumption. In those circumstances, scientific testing was regarded as the only reliable means for the claimant to attempt to rebut the presumption and to enable proper adjudication of parental rights and responsibilities.


Accordingly, leave to appeal was refused, with a conditional costs arrangement allowing further submissions, failing which the applicant for leave to appeal would pay costs including those of two counsel.


LEGAL PRINCIPLES


The judgment applied the principle that courts, as upper guardians of minor children, have jurisdiction to make orders directed at protecting and determining the child’s welfare, which can include orders facilitating the determination of paternity where that determination bears upon the child’s interests and the adjudication of parental responsibilities.


It further applied the principle that, depending on the circumstances and within reasonable limits, a court may require that privacy interests of a non-consenting adult yield to the interests of justice and truth-finding, particularly where statutory and constitutional developments have strengthened the legal recognition of the status and interests of persons asserting biological parentage.


The judgment affirmed that the best interests of the child are paramount in matters concerning the child, but it treated the inquiry as requiring a balancing of all constitutionally and statutorily relevant considerations, rather than treating paramountcy as excluding any consideration of other interests such as legal certainty and equality-related interests of unmarried fathers.


On presumptions of paternity, the judgment applied the distinction between the statutory presumption in section 36 of the Children’s Act (addressed to proof of paternity for persons born out of wedlock) and the common-law presumption applicable to children born in wedlock (pater est quem nuptiae demonstrant). Where the common-law presumption operates, the judgment treated reliable scientific testing as materially important, and potentially necessary, to enable a claimant to attempt to rebut that presumption through proof on a balance of probabilities.

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Dreyer v Botha (4421/08) [2009] ZAGPPHC 50; 2009 (5) SA 479 (GNP) (14 May 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 4421/08
14/05/2009
REPORTABLE
In
the matter between:
YOLINDE
DREYER (MOLLER)
Applicant
and
LOURENS MARTHINUS BOTHA
Respondent
________________________________________________________________
JUDGMENT IN THE APPLICATION FOR
LEAVE TO APPEAL
________________________________________________________________
MURPHY J
1. On 19 November 2008 I handed down
judgment ordering the respondent to submit herself and her minor
child to DNA tests for the purpose
of determining whether the
applicant is the biological father of the child. The respondent now
applies for leave to appeal against
that order.
2. In the judgment I made the
observation that the law on the topic of compulsory blood or DNA
testing in parental disputes is not
satisfactory and that judicial
pronouncements on the topic have not been unanimous in their approach
to the issues. While the preponderance
of authority accepts that the
courts have jurisdiction as upper guardians of minors to order tests
on children, there has in the
past been a division of opinion about
whether it is permissible under the court’s inherent
jurisdiction to do so in respect
of non-consenting adults. In
reaching the conclusion I did, I chose to align myself with the view
that depending on the circumstances
of the case, and within
reasonable limits, the privacy rights of a non-consenting adult may
be expected to yield to the demands of
discovering the truth in the
best interests of the administration of justice, and while the best
interests of the child are paramount
they are not the only factors to
be kept in consideration.
3. I held further that support for
such a conclusion can be found in the increased recognition of the
rights of unmarried fathers
afforded by the
Childrens Act 2005
, and
the constitutional imperative to balance the competing interests of
privacy, the equality rights of unmarried fathers and the
best
interests of the child. Moreover, I held that the presumption and
the adverse inference provided for in
section 36
and
37
of the Act
respectively would be an insufficient means for determining paternity
to the satisfaction of the applicant and for that
matter fulfillment
of the requirements of the Act.
4. The respondent (the applicant in
the application for leave to appeal) has raised 16 grounds of appeal
in the notice of application
for leave to appeal. The first four
relate to the question of whether the interests of certainty and the
rights of an unmarried
alleged biological father to know the truth
should override the privacy rights of the non-consenting mother, and
whether or not it
will most often be in the best interests of the
child to have any doubts about paternity resolved and put beyond
doubt. It is contended
that I erred in the approach I took but also
that I erred in finding in the circumstances of this particular case
that truthful verification
should trump the interests of the child.
The last ground is unsustainable because I in fact found that it
would be in the best interests
of the child for paternity to be
scientifically verified. In addition, I see no merit in the
contention that an incorrect approach
was followed. The judgment
reflects a conscious balancing of the competing interest involved
drawing upon the approach of Kotze
J in
M v R
1989 (1) SA
416(O)
as vindicated by contemporary predicates of constitutional
adjudication. There is accordingly, in my view, no merit in the
first
four grounds of appeal and little or no prospect that a higher
court would reach a different conclusion in that regard.
5. The fifth ground of appeal is
broken into four sub-grounds. The first sub-ground is that I erred
in finding that the applicant’s
entitlement to parental rights
and responsibilities is conditional upon him proving that he is the
biological father.
Section 26
specifically provides that a person
claiming to be a biological father who does not have the agreement of
the mother must apply to
court for an order confirming his paternity.
The purpose of that provision,
inter alia
, is to have legal
certainty about the status of the man seeking parental rights and
responsibilities where such man is not married
to the mother. Once
biological status is established the rights and responsibilities
follow, with their exact content being determined
in terms of
section
21(3).
Accordingly, the third sub-ground that I erred in overlooking
the provisions of
section 21(3)
is wrong seeing that I did so in
paragraph 38 of the judgment. The second sub-ground that I erred in
failing to assess the applicant’s
eligibility in terms of the
conditions imposed by
section 21(1)(b)
of the Act is equally
misplaced. As indicated in paragraphs 38, 39, 43 and 44 of the
judgment the issues of eligibility and the
assignment of rights are
matters for determination only once biological paternity has been
established. And, furthermore, the fourth
sub-ground that I erred in
not giving any weight to the fact that the applicant did not have any
contact with the child or pay any
significant maintenance is also
unfounded. The issues are dealt with fully in paragraphs 6-13 of the
judgment where I essentially
concluded that little or no significance
should be attached to the applicant’s conduct on account of the
impact of the dispute
and the respondent’s behaviour on his
conduct. I am not persuaded that a higher court would decide the
issue differently.
In the result then I do not consider there to be
any reasonable prospect of a higher court upholding the fifth ground
of appeal.
6. The sixth ground of appeal is that
I erred in failing to apply the provisions of
section 9
of the
Childrens Act and
section 28(2) of the Constitution in terms of which
the child’s interests are of paramount importance in every
matter concerning
the child. There is no basis for this ground
either. Throughout the judgment there are references to the child’s
interests
being the paramount (but not only) consideration. In
paragraph 47 I conclude that it will be in the best interests of the
child
that paternity be scientifically determined and resolved at
this early stage. The sixth ground of appeal is thus devoid of merit
and has no prospect of success on appeal.
7. The seventh ground of appeal is
that I erred in finding that the applicant has a compelling interest
in having certainty, and that
it would be in the child’s best
interest for her to have certainty too. In the light of the recent
statutory recognition of
the rights and responsibilities of unmarried
fathers I consider it unlikely that a higher court would conclude
that doubts about
paternity in a contested situation should be
allowed to continue when they are otherwise capable of easy
resolution; or that the
stigma of ongoing uncertainty would be in the
best interests of the child in the present circumstances. The
seventh ground includes
a further sub-ground that I erred in making
the assumption that the absence of scientific proof will
automatically mean concealing
the truth from the child about her
paternity. I did not, nor do I make any such assumption. As matters
presently stand the child’s
paternity is contested. Without
scientific verification it is likely to remain contested for some
time. That truth (the contested
nature of her paternity) may or may
not be revealed to or concealed from the child, but the ongoing
contested nature of the paternity
will result in the possibility of
stigma and the inability of any court to decide on the nature and
extent of any financial or other
responsibilities owing by the
applicant to the child. The ongoing uncertainty will be in neither
the applicant nor the child’s
best interests. Accordingly, the
prospect of this ground being upheld on appeal is also remote.
8. The eighth ground of appeal is that
I erred in finding that the respondent was intimate with a second
party, her husband, within
the period of possible conception. The
evidence on the point is indeed contradictory. But the exact date of
conception has not
been medically established and remains a matter
for speculation. Although it seems the child was born 7 months after
the applicant
and the respondent ceased intimacy, such evidence has
to be weighed and evaluated against the fact that the respondent on
one occasion
denied the applicant’s paternity and refused him
access to the child. That denial, by implication, points to the
pregnancy
possibly being the result of another intimacy. In the
light of the denial of paternity by the respondent I consider that a
higher
court will not likely uphold an appeal on this ground either.
9. The ninth ground of appeal is that
I erred in not relying on the presumption in section 36 and rejecting
counsel’s submission
that this was a clear indication that the
legislature envisaged this method of determining paternity as a more
proportional means
(see paragraph 42 of the judgment). I held that
the presumption and the adverse inference permitted in section 37
would not be sufficient
for an applicant seeking to determine whether
he is not the father. Mr N Maritz SC, who appeared in the
application for leave to
appeal but not the application itself, made
the more cogent submission that the presumption in section 36 does
not in any event apply
to the present case. The statutory
presumption arises in legal proceedings where it is necessary to
prove that a particular person
is the father of a person born out of
wedlock. In such circumstances a person proved to have had sexual
intercourse with the mother
will be rebuttably presumed to be the
father. In the present case the child was not born out of wedlock.
She was born during the
subsistence of the marriage between the
respondent and her husband with the consequence that the common law
presumption
pater est quem nuptiae demonstrant
applies.
Accordingly, the presumption in section 36 does not operate
sufficiently to establish the paternity of the applicant and
the
adverse inference permitted by section 37 is equally insufficient on
its own.
10. As things currently stand, the
respondent’s husband is rebuttably presumed to be the child’s
father and such presumption
(effectively denying the applicant’s
claim of paternity) will remain in place until it is rebutted and
altered by an actual
order or declaration by a competent court -
Park
v De Necker
1978 (1) SA 1060
(N) at 1061H-1062B. This point was
not argued before me during the course of the application and
therefore has not been explicitly
considered in the judgment. It
however adds compelling force to the justice of the applicant’s
cause that he be permitted
to attempt to rebut the common law
presumption by adducing scientific evidence of his paternity. Before
the presumption can be rebutted
the applicant will have to establish
on a balance of probabilities that he and not the presumptive father
is the biological father.
He will need to do likewise in any
application he brings in terms of section 26 of the Children’s
Act. Even were the respondent
to admit that the applicant is the
father, that may not be sufficient to rebut the common law
presumption. There is no evidence
on record regarding the attitude
of the presumptive father. The only conceivable reliable evidence
available to the applicant to
rebut the common law presumption in
these circumstances would be a blood or DNA test. For present
purposes the point simply is that
the ground of appeal that I did not
rely on the section 36 presumption to determine paternity is without
merit for the simple reason
that the presumption finds no application
in the present circumstances.
11. The tenth ground of appeal is
essentially a repetition of the grounds in the first to fourth
grounds and hence requires no further
consideration. The same can be
said of the thirteenth, fourteenth and fifteenth grounds.
12. The eleventh, twelfth and
sixteenth grounds allege variously and somewhat inconsistently that I
did not take account of the applicant’s
initial denial of
paternity (which is not correct - I did so but accepted that he was
acting emotionally) and the respondent’s
admission of his
paternity. The latter, as I have said, is inadequate on its own to
rebut the common law presumption but is also
contradicted by her
denial of his paternity. Accordingly, the allegation that I erred in
finding that there was not sufficient evidence
to establish paternity
is also unsustainable. The parties have made contradictory
statements and the common law presumption will
remain in place until
rebutted. Moreover, the sixteenth ground of appeal that I erred in
not giving weight to the fact that the
child was indeed born in
wedlock does not help the respondent for the reasons already stated,
and by virtue of the common law presumption
arising as a consequence
of that fact, is in fact contradictory of her claim that there is
sufficient evidence establishing the applicant’s
paternity.
13. In argument before me, Ms Tolmay
SC did not press the grounds of appeal set out on the notice of
application for leave to appeal.
Given the above analysis, her
approach was the most prudent to follow. Instead she dwelt
exclusively on the statements I made in
the judgment that the law on
the topic is not satisfactory and judicial approaches to the question
have been lacking in unanimity.
That alone, she submitted, was
ground enough for appeal. I think not. The only issue that may
remain contentious is whether or
not the inherent jurisdiction of the
court to regulate its own procedures extends to an authority to order
non-consenting adults
to submit to blood tests. The decisions
holding that no such jurisdiction exists have been overtaken by
constitutional and statutory
developments bestowing equal rights on
unmarried biological fathers. The justice of the court assuming such
jurisdiction is made
plain by the facts of the present case which
disclose an evident need for the effective adjudication of the
dispute, whether ultimately
under section 26 or the common law, in
order to determine the rights and responsibilities of the applicant
in relation to the child.
14. In the premises, and for the
foregoing reasons, the application for leave to appeal falls to be
dismissed. Neither counsel made
submissions on the question of
costs. I assume this may have been an oversight. Normally the costs
should follow the result and
considering the issues here at stake, an
award of costs for two counsel is justified. However, without the
benefit of counsels’
submissions I pause before making a final
order. The order that follows takes account of my hesitation.
15. The following orders are issued:
1. The application for leave to appeal
is dismissed.
2. Either party may on notice to the
other party approach the court in chambers to make additional
submissions on the question of
the costs of this application.
3. In the event of no additional
submissions on costs as contemplated in paragraph 3 of this order
being made within 5 days of this
order, the respondent (applicant in
the application for leave to appeal) shall pay the costs of the
application, such costs to include
the costs of two counsel.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard: 23 April 2009
For
the Applicant: Adv RG Tolmay SC, Pretoria
Instructed
By: Davel De Klerk Kgatla Attorneys c/o Jacques Roets Attorneys
For
the Respondent: Adv N Maritz SC and Adv Z Schoeman, Pretoria
Instructed
By: ML Schoeman Attorneys, Pretoria

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