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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MTHATHA
CASE NO: 4637/2022
Reportable Yes/No
In the matter between:
Z[...] M[...] 1ST APPLIC ANT
N[...] E[...] M[...] 2ND APPLICANT
And
A[...] F[...] 1ST RESPONDENT
E[...] F[...] 2ND RESPONDENT
L[...] F[...] 3RD RESPONDENT
S[...] F[...] 4TH RESPONDENT
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MHAMBI AJ
[1] This is a novel application in which the applicants seek to have an order directing
the respondents to submit themselves to the DNA test to determine whether the
respondent s are the biological children of the late M[...] R[...] M[...] ,” the deceased ”.
The respondents oppose the application only on the basis that they , (respondents) ,
seek for the DNA test to be conducted on the remains of the deceased, something
which the applicants disagree on.
[2] The salient facts of this application are that the deceased who is applicant’s
father had an intimate relationship with one N[...] B[...] F[...], mother of the respondents.
It is an admitted fact that out of that relationship one U[...] F[...], who now has
predeceased all the parties to this application, was born. The respondents allege that
they too are the biological children of the deceased. It appears ex facie the papers filed
of record that the respondent s had lodged a claim against the estate of the deceased,
alleging to be the biological children of the deceased and therefore had inherent right to
inherit the deceased estate.
[3] The applicants allude to having no knowledge of the respondents as the
deceased biological children, this paternal dispute, if I may say so, is the cause of this
application.
[4] This court has to determine, firstly , whether it has powers to order an adult
person to submit himself/hers elf to DNA test for the purposes of proving paternity.
Secondly, this court has to determine whether it is in the interest of justice, regard had
to be to circumstances of this case, that the body of the deceased be exhumed to
conduct DNA test for the purp ose of proving paternity.
[5] In their opposition the respondents have raised three points in limine , first i s the
non-joinder of the respondents’ mother, B[...] N[...] F[...], the second one, is the non -
joinder of the Master of the High Court. The la st one is the late filing of the applicants’
replying affidavit without sufficient explanation. I will deal with all the points of in limine
raised by the respondents later in this judgment.
[6] The necessity of DNA test is a common cause issue between t he parties; the
parties disagree on the manner in which the DNA test should be conducted. The
applicants suggest and seek that DNA test be done on them as the deceased’s children
or descendants , and the deceased siblings, where necessary. The respondents stand
firm to say the only manner of DNA test that will provide conclusive positive paternity
evidence is the test conducted on the body or the remains of the deceased. The
applicants regard that as an unreasonable condition and further view it as an
obstr uction to the intended DNA test they seek.
[7] This application is based on a very thorny topic relating to compulsory DNA
testing in parental dispute involving adults where the alleged father is the deceased.
[8] The parental disputes are frequent in cases involving the minor children , the
courts have mostly relied on inherent jurisdiction a s upper guardian of minors to resolve
the dispute or issue for determination. In its determination, the courts are guided by the
children’s Act1, and there is a legal certainty in that topic, dispute of paternity involving
minors.
[9] It is my view that whatever the facts of the case might be, what is important is the
administration of justice, to both parties, equally. I share the same view with Didcott J as
he held in Seetal V Previtha and Another NO2. In Seetal, Didcott J cited what the
1 Children’s Act 3 of 2005, specifically Section36 read with Section 37. A party denying paternity may
Invoke Section 37 to demand DNA test be conducted to prove paternity.
2 1983 (3) SA 827 (D) at 862 - M
Supreme Court of South Dekota said in The State of South Dakota V Damm,3 in which
he said he court said: -
‘The function of the Judiciary is the administration of justice, and Justice can
never be rightful administered unless that truth be first ascertained, as nearly as
may be………… The citizen holds citizenship subject to the duty to furnish to the
courts, from time to time and w ithin reasonable limits (which are for the courts to
determine), su ch assistance as the court may demand of him in their efforts to
ascertain the truth in controversies before them………. We perceive no valid
reason why courts of record may not require of any person within their jurisdiction
the furnishing of a few drops of blood for test purposes when, in the opinion of
the court so to do will or may materially assist in administering justice in pending
matter ’.
[10] In Seetal, Didcott J said:4-
‘In the end the debate about compulsory blood tests amounts, as I see it, to a
shut down between the ideas, these two ideas which cannot be satisfactory
reconciled, the idea that the truth be discovered whenever possible and the idea
that the personal privacy should be respected. Both are import ant. Neither,
however, is sacrosanct. Each, a s it happens, gets sacrificed, the first on some
occasions, the second on others. The clash between the two does not really
lend itself argument. How the conflict is resolved in this country when the law on
the point is eventually settled will depend l argely on the store the courts then sets
by each idea, on its own sense of priority in that regard ’.
[11] In cases involving the minor children, the courts are at ease to order for blood
tests or DNA test, considering the interests and position of the c hild regardless of any
3 (1936) 266 NW 667 at 670 -71
4 Supra, at (861 F -H)
right a n adult might allege to have been infringed. This has been the position even prior
constitutional supremacy error. In Pravitha and Another NO5 Lewis JA stated: -
“[16] However, whether the discovery of truth should prevail over such rights i s
a matter that should not be generalized. As Didcott J said in Seetal, 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 DNA test, must
consider the particular position of the child and make a determination for that
child only. The role of a court, and it’s duty, is to determine disputes in civil
proceedings on a balance of probabilities. It is not a court’s function to ascertain
a scientific proof of the truth”.
[12] Murphy J . in Botha V Dreyer6, has analysed different authorities, before and
after 1996, conclusively it is clear on those authorities that the court does have powers
to compel any person to subject to DNA test for the purposes of establishing
paternity o r of providing the truth , and administration of justice.
[13] It is certain that this court is clothed with non -statutory powers to compel an adult
person to subject to DNA test for the purposes of proving paternity. Be that as it may,
the facts of this case do not require a ruling on that aspect, from this case, th e dispute is
the manner on which the DNA test should and not only must be done or conducted .
[14] The applicants are suggestive that the DNA test conducted without the deceased
remains i s sufficient to prove paternity that is an issue between the parties, a point the
opposing respondents disagree with , and suggestive that the DNA test conducted on
the remains of the deceased will be reliable and provide the truth.
[15] Even though this court is concerned with the administration of justice, and that
the tr uth and only it gives an end to the legal controversies, th is covit need not give an
5 1983 (3) SA 827 ( D) at para 16
6 An unreported North Gauteng judgment, (4421/08) [2008] ZAGPHC 39 5 (19 November 2008).
order compelling drastic relief in circumstances when less drastic measures or remedies
are available.
[16] An order a court should make must be in the interests of justi ce and not against
public morals or contra bon as mores . An order that compels the doing of a drastic
action is similarly to the one that is contra bon as mores and against public morals.
[17] In King N.O. and Others V De Jager and Others7, the Court refers to what
Ngcobo J, held in Barkhuizen that the proper approach to constitutional challenge to
contractual terms is “whether the term challenged is contrary to public policy as
envisaged by constitutional values, in particular those found in the Bill of Rights. Since
time imme morial , courts have considered the common law rule that clauses that are
contrary to public policy are unlawful and unforceable.
[18] Even though the court referred in that case to clauses in a contract, but I find it
applicable to reliefs sought by parties in judicial controversies. A relief that is drastic in
nature, when less drastic relief ought to have been sought and subsequently granted is
unlawful and unforceable.
[19] In this case, the respondents maintain DNA test is only appropriate, if the
deceased remains will be exhumed to have DNA test conducted for the purposes of
proving paternity.
[20] It is in the public morals and policy that after death, the deceased remains or
bodies should not only be decently and reverently interred, but should also
remain in the grave undisturbed. This public morale should indeed be respected
by social institutions including courts of law. A good cause has to be shown when
unforceable circumstances make it desirabl e or imperative that a body should be
disinterred for go od reasons. In such a case, the court will not hesitate to grant an order
7 [2021] ZACC 4, 2021 (5) BCLR 449 (CC) 2021 (4) SA 1 (CC) 19 February 2021 para 38 and 41
of exhumation, if no case is made, granting an exhumation order will be against public
policy and public morals.
[21] In my view, the proposition by the respondents is drastic, I disagree with it. The
DNA test is possible , considering the facts of this case, to be conducted between the
applicants and the respondents and or between the siblings of the deceased and the
responden ts, applicants, if need arises. The facts of this case do not desire the DNA
test to be conducted on the remains of the deceased as the respondents proposed .
[22] I now turn to deal with the points in limine as raised by the respondents. Firstly,
the point of non -joinder, either of the Master of the High Court o r the responde nts’
mother.
[23] The test for joinder is well known, and it is whether the party to be joined has a
direct and substantial interest in the outcome of the pending court proceedin gs. In Absa
Bank Limited v Naude N.O.8, the court held that: -
‘[10] The test is whether a party has a direct and substantial interest in the
subject matter of the action, that is legal interest in the subject matter of the
litigation which may be affected prejudicially by the judgment of the court.
A mere financial interest is an indirect interest and may not require joinder of a
person having such an interest.
The rule is that any person is a necessary party and should be joined if such a
person has a direct and substantial interest in any order the court might make, or
if such an order cannot be sustained or carried into effect without prejudicing,
that party, unless the court is satisfied that he/she has waived his or her right to
be joined. ’
[24] After I have considered the nature of the reliefs the applicants s eek, and the test
on joinder as per the authority I have cited, I find that the Master of the High Court, and
8 20264 /14 [2015] ZAS CA 97 (01 June 2015)
the mother of the respondents, will not be prejudiced by the outcome of this case. The
interest they have or might have is not direct and substan tial to the order this court
might in the end make. I disagree with the respondent s that they ought to have been
joined in these proceedings.
25. The last point in limine relates to the late filing of the applicants’ replying affidavit.
The applicants have provided a very minimum or limited explanation for the cause of the
delay in filing their replying affidavit. The filing has been delayed for almost twelve
months. I intend to grant condonation for the late filing of the applicants’ replying
affidav it only in the interests of justice and the
I follow what the Constitutional court said in Brummer v Gorfil Brothers Investments
(Pty) LTD 9. In Grootboom the Constitutional court tabulated what the court need s to
take into account in considering whether an application for cond onation is in the
interests of justice10. This was reaffirmed by the Constitutional Court in Steenkamp and
Others v Edcon Limited11. I am mindful that the applicants did not make a substantive
application for condonation, but instead the so-called reasons for the delay are
incorporated in the replying affidavit itself. However, the conduct of the applicants will
have an effect on the question of costs for determination. I will deal with this issue later
in the judgment.
26. In this case, I am sat isfied that the applicants have, on a balance of probabilities,
made out a proper case for the reliefs they now seek. The proposition for the manner of
conducting DNA test for the purposes of proving paternity by the applicants is less
stringent and less d rastic than the one by the respondents. The circumstances of this
case do not desire the grant of the exhumation order for the purpose of proving
paternity as proposed by the respondents. The application therefore succeeds.
92000 ZACC 3, 2000 (5) BCLR 465 at para 3
10 Grootboom v National Prosecuting Authority [2013] ZACC 37 ; 2014 (2) SA 68 (CC); 2014 (1) BCLR
65 (CC) paras 22 -3 and 51
11 [2019] ZACC 17; 2019 11 BCLR 1189 (CC)
27. The last issue I have to d eal with is th at of costs. The purpose of costs awarded
is to indemnify the successful party. The general principle on costs was well
summarized in Ferreira v Powell N.O. and Others12, the Constitutional Court held
that: -
‘The Supreme Court has over th e years, developed a flexible approach to costs
which proceeds with two basic principles, the first being that the award of costs,
values expressly otherwise enacted, is in the discretion of the presiding officer,
and the second that the successful party should, as a general rule, have his or
her costs. Even this second principle is subject to the first. The second principle
to a number o f exceptions where the successful party is deprived of this or her
costs. Without attempting either comprehensive or complete analytic accuracy,
depriving successful parties of their costs can depend on circumstances such as
for example, the conduct of parties, the conduct of their legal representatives,
whether a party achieves technical success only , the nature of the litigants and
the nature of proceedings. I mention these examples to indicate that the
principle which have been developed in relati on to the award of costs are by
nature sufficiently flexible and adaptable to meet new needs which may arise in
constitutional litigation. ’
28. As I have already stated, the applicants replying affidavit has been filed in an
unpleasing manner. It is d elayed by a period of twelve months, the explanation given is
scanty or very limited, there is no substantive application for condonation filed. The
applicants conduct makes a reason to depart from principle that the successful party is
awarded with costs . I refuse to grant the applicants’ costs order or award , despite their
success in the application.
29. In the result, the following order issues: -
ORDER :
12 [1996] ZASCA 27, 1996 (2) SA 621 (CC) para 3
1. The respondents are directed to submit themselves to the DNA test, within
thirty (30) days , from the date of grant of this order, on a date to be
arranged by the applicants’ attorneys of record, for the purposes of
determining whether the late M[...] R[...] M[...] is their biological father.
2. The applicants are directed to arrange the nearest suitable and qualified
health official within t he employment of the National Health Laboratory
Services for the purposes of conducting the DNA test in order to give effect
to paragraph 1 above.
3. The first applicant is directed to furnish copies of the DNA test results to
the respondents or their attorneys, within five ( 5) days of such results
becoming available.
4. The first applicant is directed to pay costs of the DNA test, including the
travelling costs of the respondents, where so incurred.
5. Each party is directed to pay it’s own costs.
____________________
M. MHAMBI
Judge of the High Court (Acting)
Date heard : 12 December 202 4
Date delivered : 5 June 2025
APPEARANCES: -
Advocate Zilwa: Counsel for the applicants
Instructed by: Zilwa Attorneys
Suite 542 – 4th Floor
Development House
York Road
Mthatha
Tel: 047 5311572
Advocate A. Msindo: Counsel for the respondents
Instructed by: V.V. Msindo Attorneys
48 Wesley Street
Mthatha
Tel: 047 532 223