IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Reportable/Not Reportable
Case no: 23156/24

In the matter between:

L. M. M. APPLICANT

and

M. A. L. FIRST RESPONDENT

THE MINISTER OF HOME AFFAIRS SECOND RESPONDENT

THE DIRECTOR GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS
THIRD RESPONDENT

Neutral citation: L. M. M. v M. A. L. and Others (Case no 23156/24) [2024]
ZAWCHC (14 May 2025)

Coram: SALLER AJ
Heard: 22 April 2025 and 30 April 2025
Order: 30 April 2025
Reasons: 14 May 2025

Summary: Application to remove the father’s name from a child’s birth certificate –
DNA test showing that father listed on the birth certificate is not the biological father –
Children’s Act 38 of 2005 – Births and Deaths Registration Act 51 of 1992


REASONS FOR THE ORDER GRANTED ON 30 APRIL 2025


Saller AJ

INTRODUCTION

[1] This application concerns the sad question of what is to happen when a man
finds out that he is not the biological father of a child he has accepted as his
own.

[2] The applicant in this matter is a South African man listed on South Africa’s
population register as the father of the three-year-old girl P.H.M. (“the child”).
He is not married to the mother of the child , the first respondent, but
acknowledged paternity at birth and consented to being listed as father of the
child on the birth certificate . He did so based on the first respondent’s
assurances that he was the child’s father.

[3] But a recent DNA paternity test has shown that this is not true.

[4] The applicant comes to court to ask it to sever the legal relationship between
him and the child and to direct the Department of Home Affairs (“the
Department”) to remove him as father from the child’s birth certificate.

[5] The first respondent is a national of Lesotho , lawfully resident within the
court’s jurisdiction. She opposes the relief sought.

[6] Both the applicant and the first respondent were initially unrepresented. At the
hearing, the applicant was for the first time represented by counsel, while the
first appeared in person.

[7] The applicant cites the Department through the Minister of Home Affairs and
the Director -General of Home Affairs as the second and third respondents,
respectively. The Department abides the relief.

[8] The Department was represented by the State Attorney’s Ms Karjiker , who not
only assisted the unrepresented parties (as they were until the eve of the
hearing) with the practicalities of the litigation, but also prepared an
explanatory affidavit at the court’s request. The court is indebted to her.


LITIGATION HISTORY AND SUBMISSIONS

[9] The applicant filed his application on 24 October 2024, asking the matter to be
set down for 15 November 2024.

[10] The first respondent opposed the application and filed an answering affidavit
on 6 November 2024, albeit that it appears she was unable to serve on the
applicant at the address set out in the notice of motion.

[11] On 15 November 2024 the matter was called on the unopposed motion court
roll in the third division, when it was postponed to 30 November 2024. On 30
November 2024 the matter was again called on the third division roll. Mangcu-
Lockwood J sitting in third division gave directions that Ms Karjiker assist and
guide the parties to properly secure a date for he aring the application as an
opposed motion.

[12] With Ms Karjiker’s assistance, the matter was placed on the opposed roll for
hearing on 22 April 2025. F ormal communication between the parties ,
including the filing of a reply, has since been by email, facilit ated by Ms
Karjiker.

[13] At the hearing, as mentioned, the applicant was for the first time represented by
counsel, while the first respondent appeared in person and Ms Karjiker
appeared for the Department.

[14] In argument, Mr Mtambeka for the applicant submitted that the relief sought by
the applicant could be achieved through a termination of parental rights and
obligations as provided for in section 28 of the Children’s Act 38 of 2005
(“Children’s Rights Act”). While the notice of motion initially did not include
such relief, it was subsequently added as a second prayer in a n unopposed
amendment.

[15] Mr Mtambeka further submitted that the judicial presumption in favour of the
applicant’s paternity as a result of the sexual relationship between the applicant
and the first respondent at the likely time of conception was rebutted by the
result of the DNA paternity test.

[16] He concluded that an order terminating the applicant’s parental rights and
responsibilities ough t to be made on the following grounds (I paraphrase his
heads of argument slightly):

a. The applicant is not the biological father of the child;
b. It is in the best interests of the child to know her true identity;
c. The applicant no longer wishes to assume the role of father to a child he
knows is not his biological child; and
d. The child has the right to live in a secure and nurturing environment,
free from avoidable trauma.

[17] For the State Attorney on behalf of the Department, Ms Karjiker confirmed that
her clients abided by the court’s decision, but urged the court to make an order
that was practicable having regard to the Department’s established processes.

[18] Addressing the court in person, the first respondent for the first time asked the
court to order the applicant to submit to a second DNA test at her expense
before making a final order.

[19] The court mero motu referred the matter to oral evidence in view of the
potentially very serious repercussions of the outcome of this applica tion on the
minor child, the limited information placed before the court in the respective

affidavits, as well as the fact that the first respondent remained unrepresented .
None of the parties objected to the referral.

[20] After hearing the oral evidence of the applicant and the first respondent (more
on this below) and considering the parties’ submissions, I stood the matter
down subject to directions for Ms Karjiker to file a n explanatory affidavit on
behalf of the Department setting out the practical steps, and their legal bases,
which the Department ordinarily requires for the removal of the name of an
unmarried father from a child’s birth certificate if and when it is established
through a DNA paternity test that he is not the biological father.

[21] Ms Karjiker filed such an affidavit on 25 April 2025. The procedure which the
Department adopts to cater for the removal of the father’s name from a birth
certificate is described in that affidavit as follows:

a. Both parents are ordinarily required to apply under section 7(2) of the
Births and Deaths Registration Act 51 of 1992 (“Births and Deaths
Registration Act”) on the prescribed form DHA 526 for the
“verification, supplementation or rectification of personal particulars ”
on the populat ion register; as well as providing two completed sets of
prescribed DHA 24 forms entitled “Notice of Birth” to indicate the
child’s old details (i.e. providing the mother’s, the father’s, and the
child’s details) and the child’s new details (i.e. providing only the
mother’s and the child’s details).

b. If there is a court order that permits the application to be made by only
one parent, a stamped copy of such an order must accompany the
application.

c. If paternity has been excluded on the strength of a DNA test, a copy of
the laboratory test result must accompany the application.

d. There are other requirements, such as an administrative payment of R70
and the attachment of a range of documents.

THE PARTIES’ EVIDENCE

[22] The applicant and the first respondent both say they commenced a relationship
“late in 2021”, but neither can say with certainty in which month, much less on
which day, their relationship began.

[23] It is common cause that immediately prior to their relationship, the first
respondent was involved with another man . She was unable to say when her
relationship with her previous boyfriend ended . This, too, she says, was “ late
in 2021”.

[24] Soon after commencing the ir relationship, the first respondent told the
applicant that she was pregnant, and the child was born on 30 June 2022.

[25] The applicant says that the first respondent assured him he was the biological
father of the child , and despite some misgivings, he accepted her word. He
attaches a copy of the child’s birth certificate to his founding application ,
which identifies him as the as the child’s father and records that the applicant
acknowledged paternity of the child at birth.

[26] The applicant embraced h is responsibilities as father. He supported the first
respondent financially during her pregnancy, and until very recently he
supported the child financially without there being a maintenance order in
place. He took out medical aid and listed the child as a dependant to ensure she
received proper medical care. He and the applicant did not live together, but he
would see the child most weekends . When speaking about his relationship
with the child, he became visibly emotional , and the court has no doubt that he
cares for her.

[27] But his emotional attachment to the child is the very thing, he ex plained, that
pushed him to insist on a paternity test . This is because his continuing and
growing doubts regarding the child’s paternity have impacted negatively on his
relationship with her.

[28] The first respondent eventually agreed t hat a paternity test be done. O n
25 September 2024 both parties and the child went to the Lancet Laboratory
facility in Rondebosch, where samples were taken for that purpose.

[29] The pathology result of the DNA paternity test , dated 18 October 2024 , is
attached to the founding affidavit. It unequivocally excludes the possibility of
the applicant’s paternity of the child.

[30] The first respondent complained of the fact that she, as mother, was not
contacted directly by Lancet or provided with the results , despite providing her
contact details when she attended the laboratory on 25 September 2024. In her
oral evidence, she said that she has never seen the original result. When invited
to view the original document in the court file, however, she indicated that she
accepts that the laboratory test result excludes the applicant’s paternity.

[31] Faced with the first respondent’s complaint, the applicant explained in his
replying affidavit and in oral evidence that since he had paid for the paternity
test, he was regarded as the account holder, and it is for this reason that Lancet
contacted only him on 18 October 2024 to notify him of the result. When he
called Lancet to obtain further details, he was told that the pathology test result
could be collected at any Lancet br anch, which he did shortly thereafter on the
same day.

[32] After collecting the pathology test result that excluded his paternity , the
applicant confronted the first respondent on Whats App. An exchange of
WhatsApp messages ensued over the following days. The first respondent told
the applicant that she contacted Lancet telephonically to verify the result, but
its employees refused to discuss the result with her without the applicant being
present. The applicant then sent her an image of the patholo gy result on
WhatsApp, at her request . He also offered to go to Lancet with her “anytime”

WhatsApp, at her request . He also offered to go to Lancet with her “anytime”
to verify the test result . The applicant also told the first respondent that he
wanted to have his name removed from the child’s birth certificate , and that
they would have to go to the Department together to do so.

[33] The first respondent’s reply was that she was only free on Saturday after 5pm,
due to her work. The applicant pointed out that the Department was only open
weekdays from 8am to 5pm . I n his oral evidence, he reiterated that he ha d
been willing to go to Lancet with the first respondent to satisfy her of the result,
but that her insistence on going after hours made that impossible.

[34] There is some dispute, which takes the matter no further, about what interaction
took place over the next few days. The applicant says the first respondent was
in Lesotho when they corresponded regarding the results, and that she refused
to engage with him thereafter. The first respondent says she was in
Johannesburg, and it was the applicant who would not speak with her
telephonically. The applicant says they spoke again on 23 October 2024 when
he repeated his request that the first respondent accompany him to the
Department to change the child’s birth certificate, which she refused. The
applicant says such a conversation took place on 21 October 2024, and that her
refusal was only due to her work commitments.

[35] The applicant says he went to the Department alone, where he was told that he
would require the first respondent’s co -operation to change the details of the
child’s birth certificate.

[36] On 24 October 2024 the applicant filed the present application.

[37] From the parties’ oral evidence, it appears that the applicant has subsequently
ceased all payments in support of the child. The first respondent has removed
the child from her school in Cape Town. At present the child is living with her
grandmother, the first respondent’s mother, in a village outside of Maseru,
Lesotho, and is going to school there. The first respondent’s you nger sister
lives nearby and visits occasionally. The first respondent says this is because
she cannot afford to keep the child with her in Cape Town without financial

she cannot afford to keep the child with her in Cape Town without financial
support from the applicant. She is currently unemployed and receives only
occasional financial support from her older sister.

[38] It also emerged that, at some point, the first respondent asked the applicant that
a second DNA paternity test be done. The applicant refused, on the grounds

that he had already paid in full for the first test, and that the first respondent
was not willing to pay for the second test she requested. In her oral evidence,
the first respondent indicated that her family was now prepared to pay for a
second test.

[39] In his oral reply, the applicant still resisted a second test, on the grounds that
the delay in severing his legal relationship with the child was causing him
ongoing deep emotional pain for which he had to seek therapy. He pointed out
that there was no reason to doubt the outcome of the first paternity test result:
the first respondent was present when the samples were taken , and the test is
conclusive. The applicant’s response appeared genuine, as did his emotional
turmoil. His concern with delay is underscored by the fact that the first
respondent indicated that the earliest that the child could be returned to Cape
Town to conduct a second test was during the school holidays in late June or
July 2025.


DETERMINATION OF THE ISSUES

[40] Two issues present themselves for determination. The first is whether the
applicant should be ordered to submit to a second DNA paternity test before a
final determination is made . If the answer is in the negative, the second
question that arises is whether there are grounds for granting the application for
termination of the applicant’s parental rights and responsibilities and his
removal from the child’s birth certificate as the child’s father.

[41] As to the first question, the first respondent was unable to explain on what
grounds she disputed the outcome of the DNA paternity test. She accepts that,
on the face of it, the test result excludes the applicant’s paternity.

[42] The first respondent’s complaint about the manner in which the outcome of the
paternity test was communicated , is addressed by the applicant’s explanation
that he is the account holder because he paid for the test. This is borne out by

that he is the account holder because he paid for the test. This is borne out by
the fact that only the applicant ’s details – his email address and his cell phone
number – appear on the test result. More importantly, whether or not Lancet’s

employees were remiss in notifying the first respondent has no bearing on the
integrity of the test result.

[43] It is to the first respondent’s credit that she frankly admitted that she was
unable to put a date to when the relationship with her previous boyfriend ended
and her relationship with the applicant began in “ late 2021 ”. This period of
uncertainty fully overlaps with the likely time of conception of the child who
was born on 30 July 2022. On her own version, it is therefore reasonably
possible that she was engaged in a sexual relationship with someone other than
the applicant at the time the child was conceived.

[44] Taken together, these facts comfortably tilt the balance of probabilities in the
applicant’s favour that he is not the biological father of the child.

[45] This court has an inherent power to order that a paternity test be conducted
against the wishes of a putative parent where there is genuine uncertainty
regarding paternity, and this is in the interests of the minor child. But such an
order is not to be had merely for the asking. A court will be mindful of the fact
that it constitutes an infringement of the putative parent’s rights to privacy and
bodily integrity . The role of a court, and its duty, is ultimately to determine
disputes in civil matters on a balance of probabilities. In this regard, see Y.M. v
L.B. 2010 (6) SA 338 (SCA) paras 11, 14-16.

[46] Where, as here, that balance is comfortably established on the evidence already
before the court, there are no grounds for the court to order the applicant to
submit to a second paternity test before making a final order.

[47] Turning then to the second issue, the applicant seeks relief that both is
substantive and practical. While the termination of the applicant’s
responsibilities and rights under section 28 of the Children’s Act goes to the
substance of what the applicant wishes to achieve, he also asks that this be

substance of what the applicant wishes to achieve, he also asks that this be
given practical effect through his removal from the child’s birth cert ificate as
father.

[48] A birth certificate reflects the particulars which are required to be submitted to
the third respondent, the Director -General, by the provisions of the Births and

Deaths Registration Act . In the present matter, upon the registration of the
child’s birth as required by that Act, the applicant’s paternity of the child will
have been included in the population register of which the third respondent is
the custodian. It is that information which must be amended in order to g rant
the applicant the practical relief he seeks.

[49] Section 7(2) of the Births and Deaths Registration Act empowers the third
respondent to rectify the particulars of “any person in any document submitted
or preserved in terms of this Act or included in the population register ” if it
comes to his attention that such particulars are incorrect . S ubsection (4)
provides for an application to be made to the third respondent in the prescribed
form for “the amendment or rectification of his or her particulars furnished in
terms of this Act”.

[50] As already mentioned, the Department requi res that such an application to be
made on the form DHA 526, accompanied by a corrected notice of birth on
form DHA 24. In the case of a minor child, where the records maintained by
the third respondent reflect both mother and father, the consent of both parents
is required for a change of the child’s particulars unless a court orders
otherwise.

[51] The Births and Deaths Registration Act does not make express provision for
such an order. I am, however, satisfied that the court has the inherent power as
the upper guardian of the minor child , having regard to the child’s best interest
as provided by section 28(2) of the Constitution, to make such an order.

[52] Section 28(1) of the Children’s Act, read with section 28(3)(a), on the other
hand, makes express provision for an order by the High Court terminating a
person’s parental responsibi lities and rights . Subsection (4) sets out the
considerations which must be taken into account when making such an order.
Unsurprisingly, here, too, the court is required to consider the best interests of

Unsurprisingly, here, too, the court is required to consider the best interests of
the child , as well as the parental relationship a nd degree of commitment, as
well as any other factor which the court considers relevant.

[53] At first blush, it might app ear that in the present matter the best interests of the
child are irreconcilable with those of the applicant and place an insurmountable
obstacle in the way of the relief he seeks because a termination of the
applicant’s legal obligations towards the child will result in a deprivation of the
advantages she has enjoyed through her relationship with him. But a far more
nuanced enquiry is called for.

[54] In De Reuck v Director of Public Prosecutions 2004 (1) SA 406 (CC), the
Constitutional Court grappled with the question whether the interests of a
minor child would always trump competing rights of another person. Deputy
Chief Justice Langa (as he then was) answered the question in the negative and
explained at para 55 (footnotes omitted): -

“[55] In the High Court judgment, the view is expressed … that section 28(2)
of the Constitution “trumps” other provisions of the Bill of Rights. I do not
agree. This would be alien to the approach adopted by this Court that
constitutional rights are mutually interrelated and interdependent and form a
single constitutional value system. This Court has held that sect ion 28(2), like
the other rights enshrined in the Bill of Rights, is subject to limitations that are
reasonable and justifiable in compliance with section 36.”

[55] Four years later, i n S. v M. (Centre for Child Law as amicus curiae) 2008 (3)
SA 232 (CC) the Constitutional Court had opportunity to comprehensively
consider the scope and nature of the protections afforded to minors by
section 28 of the Constitution , including the requirement, in section 28(2), that
in every matter concerning a child its best interests are “ of paramount
importance”.

[56] Writing for the majority (with the minority not taking issue with the legal
principles developed) Justice Sachs placed the constitutional injunction of
section 28(2) of the Constitution in context (para 20, my emphasis, footnotes
omitted):

section 28(2) of the Constitution in context (para 20, my emphasis, footnotes
omitted):

[20] No constitutional injunction can in and of itself isolate children from the
shocks and perils of harsh family and neighbou rhood environments. What the

law can do is create conditions to protect children from abuse and maximise
opportunities for them to lead productive and happy lives. Thus, even if the
State cannot itself repair disrupted family life, it can create positive c onditions
for repair to take place and diligently seek wherever possible to avoid conduct
of its agencies which may have the effect of placing children in peril. It follows
that s 28 requires the law to make best efforts to avoid, where possible, any
breakdown of family life or parental care that may threaten to put children at
increased risk. Similarly, in situations where rupture of the family becomes
inevitable, the State is obliged to minimise the consequent negative effect on
children as far as it can.

[57] Justice Sachs went on to highlight at para 24 the contextual nature and inherent
flexibility of the enquiry into the child’s best interests mandated by section 28
of the Constitution . He pointed out that “ [a] truly principled child -centred
approach requires a close and individualised examination of the precise real -
life situation of the particular child involved.”

[58] And, of particular relevance to the present matter, at para 25 Justice Sachs held
that the emphatic and far-reaching formulation of section 28 “cannot mean that
the direct or indirect impact of a measure or action on children must in all
cases oust or override all other considerations. ” At para 26, he affirmed that
“the best -interests injunction is cap able of limitation ” and that section 28
“cannot be said to assume dominance over other constitutional rights”.

[59] Returning to the present matter, the evidence is that t he paternal relationship
between the applicant and the child has irretrievably broken down . Its
severance has left the applicant with emotional scars . The applicant explained
how it became impossible for him to treat the child as his own , first in doubt,
and now in the secure knowledge, that she is not his biological child. For as

and now in the secure knowledge, that she is not his biological child. For as
long as the applicant is legally bound to the child, she will embody his pain and
feed his resentment that he was falsely persuaded to accept her as his own.

[60] On the other hand, t he child is currently in a safe environment with her
grandmother in Lesotho and has started going to pre-school there. The first
respondent’s younger sister lives nearby , and the first respondent visits when

she is able. The child may yet come to know her true biological father or may
come to have another father figure in her life. The relief sought does not stand
in the way of her future.

[61] In those circumstances, and on balance, I concluded that the applicant should
be granted the relief he sought and made a such an order on 30 April 2025.


COSTS

[62] The applicant was required to approach the High Court as upper guardian of
the child for the relief he sought. He was unrepresented for the majority of the
time, but f elt compelled to brief counsel at the third appearance undoubtedly
motivated by his frustration at the delays in bring the matter to finality.

[63] On the other hand, th at delay can not be placed at the door of the first
respondent, who appeared in person each time the matter was set down. She is
currently unemployed and without significant means . There is no indication
that she acted in bad faith in opposing the relief. She, too, clearly cares about
her child, and wants what is best for her.

[64] Finally, as already mentioned, Ms Karjiker on behalf of the Department went
far beyond what was required. She appeared each time, not to oppose the relief
sought but to assist the court. She submitted that the Department should not be
saddled with a costs order regardless of the outcome of the application, and that
submission was plainly well made.

[65] In the circumstances, no order as to costs was made.



_____________________________
K S SALLER
ACTING JUDGE OF THE HIGH COURT

Appearances

For applicant: Adv Xabiso Mtambeka
Instructed by: Masoka Attorneys Inc.

First respondent: in Person
For second respondent: SB Karjiker, State Attorney, Cape Town.