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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: MTHATHA
CASE NO: 4637/2022
In the matter between:
Z[...] M[...] & ANOTHER APPLICANTS
And
A[...] F[...] & 3 OTHERS RESPONDENTS
_________________________________________________________________
JUDGMENT ON LEAVE TO APPEAL
_________________________________________________________________
MHAMBI AJ
[1] This is an application for leave to appeal against judgment and order of the
court granted on 03rd June 2025.
[2] The issues for determination in the main judgment concern whether this court
has powers to order an adult person to undergo paternity test. The main judgment
described this as a thorny issue of law as circumstances of t his kind are unusual in
law. According to the parties it is common cause that determining paternity is
necessary to establish whether the respondents are the children of the late M[...]
R[...] M[...]. What is in dispute is the manner in which the DNA should be conducted
to prove such a paternity.
[3] The applicants suggested that a sibling’s test, whereas the respondents
suggested that the only conducive DNA test would be one conducted on the remains
of the deceased. The main judgment described this as drastic.
[4] The test for leave to appeal is regulated by Section 17 of the Superior Court
Act1, ‘the Act’.
[5] Section 17(1)(a) of the Act provides that:-
‘Leave to appeal may only be when the judge or judges concerned are of the opinion that-
i) the appeal would have a reasonable prospect of success, or
ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgment on the matter under consideration’.
[6] In the Mount Chavelox Trust v Tina Goosen and Others2, unreported judgment of
the Land Claim Court, Bertelsmann J held that:-
‘It is clear that the threshold of granting leave to appeal against the judgment of a higher
court has been raised in the new Act. The former Act whether leave to appeal s hould be
granted was reasonable prospect of success that another court might come to a different
conclusion see Van Heerden v Groonwright and Others 3. The use of the word “ would” in
the new statute indicate a measure of certainty that another court wil l differ from court
whose judgment to be appealed against’.
[7] In a nutshell an application for leave to appeal must convince the court that on
proper grounds there is a real prospect or realistic chance on appeal. A mere
1 Act 10 of 2013
2 LCC 14R/2014, 3 November 2014.
3 1986 (2) SA 342 (TPD) at 343C
possibility of success, an argua ble case or one that is not hopeless, is not enough.
There must be sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.
[8] On this test of appeal, the SCA stated the following in S v Smith4:-
‘What is a test of a r easonable prospect of success postulates is a dispassionate decision,
based on the facts and the law, that a court of appeal could reasonably arrive at a
conclusion different that of the trial court. In order to succeed therefore the appellant must
convince this court that on proper grounds that he has prospects of success on appeal and
that those prospects are not remote but have a realistic chance of succeeding. More is
required to be established that that there is mere possibility of success that the ca se is
arguable on appeal or that the case is not categorized as hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are prospects of success on
appeal.’5
[9] The basis of this appeal is whether or not the cour t has powers to compel any
person to subject to DNA test for the purposes of proving paternity or proving the
truth and the administration of justice.
[10] In my view, despite Botha v Dreyer6 and the authorities referred therein, finding
find that this court does have the power to order or compel any person to submit to
a DNA test for the purposes of establishing paternity or of proving the truth in the
administration of justice ,whenever the need arises or when it is in the interest of
justice to do so.
[11] I disagree with the applicant that the decision in Botha v Dreyer even though
specifically dealt with paternity involving minor child and thus its findings cannot be
extended to all persons and or any person.
4 S v Smith, 2012(1) SACR 567 (SCA), see also Ramakotso and Others V African National Congress,
2021 ZASCA 31, 31 March 2021
5 Supra para 7
6 442/08 [2008] ZAGPHC 395 (19 November 2008)
[12] The applicant seem to have given little regard to the views of Didcott J, as he
held in Seetal v Previtha and Another NO7. The judgment is correctly referred to in
paragraph 9 of the main judgment.
[13] It is a matter of fact that the DNA test on the remains of the deceased could
not be conducted without the remains being exhumed. This is a point the appellant
misses, unless it has another suggestion, which it has not proposed in the main
action.
[14] The conditional consent for the DNA to be conducted on the remains of the
deceased, ipso facto means the respondents seek the remains of the deceased to
be exhumed for that purpose. The main judgment is correct in this regard; no other
interpretation could be placed on the intention of the applicant.
[15] The reference in the main judgment to the issue of public morals and the
authorities cited therein, is relevant to stress the fact that the remains of the
deceased must be respected. I -re-iterate that th e intentions of the applicants are
drastic on how DNA test should be conducted.
[16] I disagree with the applicant; the main judgment considered condonation of
the late filing of the applicants’ replying affidavit. The court expressed its displeasure;
hence its party was ordered to pay its own costs, this is despite the success of the
applicant in the main application.
[17] I agree with the view that a court may not grant leave to appeal where the
threshold which warrants such a leave has not been cleare d by the applicant. The
threshold has been given legislative force and clarity8
7 1983 (3) SA 827 (D) 862-M
8 H.B. (nee DJ) v R.J.B. (21480/2014) [2024] ZAGPPHC 401 (2 April 2024)
[11] Perhaps, before, I conclude and make a finding on this application, it is
apposite for me to borrow from the words of Theron AJ in Molaudzi v S9 in that:-
‘The rule of law and legal certainty of finality of a court order is in doubt and can be revisited
in a substantive way. The administration of justice will also be attended if parties are free to
continuously approach court on multiple occasions in the sam e matter. However, legitimacy
and confidence in the legal system demands that an effective remedy in situations where the
interest of justice cry out for one. There can be no legitimacy where final orders would result
in substantial hardships or injustice or are allowed to stand merely for the sake of rigidly
adhearing to the principle of res judicata. (paras 37-39)’.
[12] In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector Including Organs of State
and Others maintains that finality of a matter is of essence and the parties may not
come to court for a simple delay or it’s deferral10
[13] In my view, meritless and void of basis application for court to appeal should
not burden an appeal court with scarce resources as it may have.
[14] I maintain, the main judgment is correct, the DNA proposition as suggested by
the applicant, in this application for leave to appeal is drastic, in circumstances
where less drastic measures can be used.
[15] I am not convinced that another court might find differently. Therefore, this
application for leave to appeal should fail.
In the result I make the following order:-
9 2015 (8) BCLR 904 (CC )
10 2021 (11) BCLR 1263 (CC) para 1
1. This application for leave to appeal is dismissed with costs on Scale B.
_________________________
M. MHAMBI
Judge of the High Court (Acting)
Date heard : 28 August 2025
Date Delivered : 16 September 2025
APPEARANCES:-
ADVOCATE ZILWA : Counsel for the Applicants
Instructed by : Zilwa Attorneys
Suite 542 – 4th Floor
Development House
York Road
Mthatha
Tel: 047 5311572
Mr Msindo : Attorneys for the Respondents
Instructed by : V.V. Msindo & Associates
No: 48 Wesley Street
Mthatha