SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: A115/2025
In the matter between:
E[...] A[...] P[...] Appellant
And
S[...] W[...] Respondent
Coram: LE GRANGE J et MORRISSEY AJ
Heard: 15 August 2025
Delivered: 20 November 2025
ORDER
1. The appellant's late filing of his notice of appeal is condoned.
2. The appeal is dismissed.
3. There is no order as to costs.
JUDGMENT
MORRISSEY AJ
Introduction
[1] This appeal concerns the correctness of a finding by the Cape Town district
Magistrate's Court, sitting as a maintenance court, that the appellant is the biological
father of one Z[...] W[...] ("Z[...]").
[2] The appellant was unrepresented, both in the p roceedings before the
maintenance court and in the appeal. Before us he explained that he had received
legal assistance from a third party, something that is apparent from some of the
documents he has filed in the appeal.
[3] The respondent, Z[...]'s mother , filed a notice to abide the outcome of the
appeal. She was represented on a pro bon o basis at the maintenance court
proceedings. She was unrepresented by the time of the appeal, which she attended
as an observer.
[4] The appeal was noted late. Condona tion was sought by way of a formal
application. There was no opposition and a satisfactory explanation for the delay was
forthcoming. That application will be granted.
[5] The notice of appeal raised 17 points of law and 46 points of fact. The
appellant's heads of argument indicated that 44 of those grounds should be
considered, with the balance effectively being abandoned.
[6] We have considered all the submissions made. In our view, the outcome of
the appeal ultimately turns on a relatively narrow compa ss, namely, the extent to
which the maintenance court was entitled to have regard to certain paternity tests the
appellant was subjected to.
[7] A core submission made by the appellant is that those paternity tests were
never properly introduced into evid ence and, even if they were, no weight should
have been placed on them because they concern expert evidence which needed to
be supported by oral testimony from an expert in order to be admissible. Essentially,
the appellant says the tests should have been completely ignored.
[8] That issue is a nuanced one that has made it necessary to quote relatively
extensively from the record.
[9] The appellant also challenges many findings the maintenance court made, or
failed to make, regarding the oral evidence led . At the risk of oversimplification, the
appellant contends that the viva voce evidence did not establish that he was Z[...]'s
father on the probabilities.
The record and the historic paternity tests
[10] The record runs to just over 450 pages. Much of i t comprises the transcript of
the proceedings in the maintenance court. The balance comprises the heads of
argument filed on behalf of the parties in that court, the judgment appealed against,
and 17 pages of documents described in the index as " Documents obtained from the
magistrate's record in court file as referred to in her judgment. Not marked as
exhibits apart from an exhibit "B"."
[11] The transcript reveals that the matter has had a chequered history.
[12] From what we can make out, the proceedings commenced in 2016 when the
respondent approached the maintenance court. It appears she alleged that the
appellant was the biological f ather of Z[...], and that the court, via a Magistrate Van
der Sputy, directed the appellant to submit to a paternity test in order to assist in
determining that allegation.
[13] It does not seem that the appellant resisted that direction, if it was in fact
issued at all. It appears from the transcript that it was sought because a paternity test
done in 2001 had not been undertaken by a laboratory associated with the South
African National Accreditation System (" SANAS"). On the face of it, the 2001 test
("the first test") concluded that the appellant was not Z[...]'s father.
[14] The second paternity test seems to have been done in about April 2017 (" the
second test"). On the face of it, that test concluded that"... the probability of EA Page
[the appellant} being the biological father of Z[...] is greater than 99.9999%".
[15] It also appears that there was subsequently a maintenance enquiry before a
Magistrate Burick (or Bruck, the spelling is not consistent on the record), where the
first and second tests wer e considered. The maintenance court apparently heard
evidence from a Dr Marx and a Dr York, who were ostensibly the signatories to the
first and second tests respectively. There was possibly also evidence from a
representative of SANAS. It seems that the record of that evidence has been lost.
[16] Magistrate Burick appears to have ordered that a third paternity test be
conducted. It is unclear why. It may have been because the Magistrate considered
that no finding could be made on the first two tests. It w as also suggested that the
third test was ordered based on evidence from Dr York that more reliable testing
could be done. It seems the direction was made shortly before the parties were to
make their closing arguments.
[17] The third test seems to have b een done during December 2019 (" the third
test"). On its face its conclusion was the same as the second test: The probability of
the respondent being Z[...]'s biological father was greater than 99.9999%.
[18] It does not seem that any evidence was led regarding the third test prior to the
proceedings that are the subject of this appeal. Rather, Magistrate Burick was
recused and the matter came before Magistrate Boltman to hear de novo . On 9
September 2022 Magistrate Boltman apparently ordered the appellant to submit to a
fourth paternity test. The reason why that direction was made is also unclear, but it
may have been because the Magistrate considered that the results of the first three
tests were inconclusive. It is not clear what served before the Magistrate in coming to
tests were inconclusive. It is not clear what served before the Magistrate in coming to
that conclusion.
[19] It seems the appellant instituted proceedings in this court to recuse Magistrate
Boltman and to review the direction that he submit to a fourth test. It also seems that
both of those applications failed. It is possi ble that the review did not succeed on a
technical basis, namely, the decision should have been appealed. Be all that as it
may, it seems that the matter was then allocated to Magistrate Lawrence, the author
of the judgment now appealed, to hear de novo. It is not clear from the record why a
de novo hearing was directed, or by whom it was directed. Magistrate Lawrence
states in her judgment that " ... the office directed me to hear the case afresh". It may
be that that a de novo hearing was convened because the record of the previous
proceedings could not be located.
The proceedings subject to appeal
[20] The transcript forming the appeal record begins on 25 September 2024, which
appears to be the first substantive involvement Magistrate Lawrence had in th e
matter. On that occasion the court was hearing argument about whether the
appellant should submit to a fourth paternity test. The appellant resisted that
direction. The respondent's representatives said it should go ahead, and had to go
ahead because Magistrate Boltman had previously issued an order to that effect.
[21] It is convenient to set out part of the exchange between the appellant and the
court as to why he considered he should not be obliged to submit to a fourth test:
"MR P[...] ADDRESSES COURT: Your Worship, I have written down my stuff
Can I read from there so that I do not miss anything out?
COURT: You are most welcome to do that.
MR P[...]: Can I give you a background of .. [incomplete]
COURT: You can do what you ... [intervenes]
MR P[...]: Okay.
COURT: Just remember the purpose - the issue here is why you do not want
a fourth blood test, okay.
MR P[...]: Okay.
COURT: Keeping in mind that is something a previous magistrate requested.
MR P[...]: Okay, I do keep that in mind, Y our Worship. You Worship, as Your
Worship should now the indicator that I was ordered by the Court for a fourth
DNA test whereby I put myself available three times already. I have now come
to learn that an previously it was not done that my rights was read out to me
properly in the sense of that I can or I may refuse to go for a DNA test and
that with further hearings my credibility will be held or in accountable. That
only came to me now with my latest research and I was never ever told that
that is the case that I may refuse to go.
COURT: And what would your reasons be for that, sir? Let us place that on
record.
MR P[...]: Your Worship, we have -the tests that we have done before was in
2002 there was a test done and fathership was excluded.
COURT: Correct, okay.
MR P[...]: Another test was ordered where it was inconclusive.
COURT: Which year was that?
MR P[...]: Your Worship, that was in the year 2016/2017. That is 14 years
after the initial test was done.
COURT: What was that result?
MR P[...]: That was inconclusive, Your Worship.
COURT: Based on what?
MR P[...]: Based on the statistics on the DNA report based on what the notes
were on the report.
COURT: Are you in a position ... [intervenes]
MR P[...]: And the exclusions that was on there.
COURT: Are you in a position to read out that note?
MR P[...]: Your Worship, I do not have it with me. This is what Mr Mapara [the
maintenance officer} has. We did not prepare for this. Otherwise I would have
brought the necessary documents with.
COURT: It is fine, sir. We will - it is not a problem. Is that the document that
you want to read from that was handed to you now?
MR P[...]: Your Worship, no, this is the covering document of the said test.
The test has got all the scientific details on there and there it... [intervenes]
COURT: Remember you said it is inconclusive.
MR P[...]: Yes.
COURT: I want you to read the part that you said is inconclusive.
MR P[...]: Yes. Your Worship, I refer to the SANAS guidelines.
COURT: Okay.
MR P[...]: And which Ido not have in front of me, but there is a SANAS
guideline that says if there is two or more exclusions it shall state that
paternity is excluded.
COURT: Ja.
MR P[...]: Which this test did not state.
COURT: Okay.
MR P[...]: That was clarified. It was worked through. The after that there was
also a letter from the specific MDS, that is Molecular Diagnostic Services, that
is the lab that performed it, where the director, Dr York, sent a letter through
and said - I just want to go through this second the second page that is on
here. I do remember what it says, but I want to see if I can read it out for you if
I find it here because the documents are probably all in the court file. Two
seconds. This is not the one I was l ooking for, but it does state on there on
that specific letter the result generated - this is now the cover letter that says:
"The results generated by MDS tests probability of paternity of alleged father
against an unrelated man. If a close relative or alleged ... [incomplete]
Okay, that is just a normal recommend, but there is a letter that the doctor
said:
"I do not state that Mr P[...] is the father. That a close relative or random man
can also be the father should he be tested. "
COURT: Are you making - I understand you to say that is what the doctor is
saying, but are you also making that allegation?
MR P[...]: Your Worship, yes, and through all the tests that were done and this
is not - what I do not know if I can do, but going back into the previous
evidence that there was not a finding made on that specific test.
COURT: Correct.
MR P[...]: And then we have heard evidence and after the evidence which
was all clear at the time, the magistrate could not do a finding and then
ordered the third test. That is wh en we were about to do closing arguments
after all the professional doctors, SANAS, everybody came for evidence and
personal witnesses as well and then the order was just made for a third test.
COURT: Was the third test done?
COURT: Was the third test done?
MR P[...]: Ja, the third test was done. I submitted myself again for a third test.
COURT: And in which year was that, meneer?
MR P[...]: That was in 2019.
COURT: And you have a copy of that result with you as well?
MR P[...]: That is in the court file, Your Worship.
COURT: Okay, we will - the maintenance officer will assist for you with that.
MR P[...]: And that test was inadmissible, Your Worship.
COURT: Why do you say that, meneer?
MR P[...]: MDS was again involved in the test. It was then - but they did not do
the scientific testing. They took it upon themselves to take the test results and
put it on their own letterhead, which is sort of fraudulent, and present it as
their own test.
MAINTENANCE OFFICER: Can I ... [intervenes]
MR P[...]: Bearing in mind, Your Worship, that all the tests that we re done all
had the same exclusions on there and on top of that there were ands and
if/ors. So there were more calculations on there that says it can either be this
one or that one, or there can be a mutation on certain others.
COURT: Is that the 2019 test?
MR P[...]: 2019 and the previous one prior to that was also the same, it also
had exclusions on there.
COURT: Okay.
MR P[...]: And that was deemed inadmissible.
COURT: Why do you say it was inadmissible, was that a ruling the Court
made?
MR P[...]: Mr Mapara can answer for that.
COURT: He will address the Court on that.
MR P[...]: Ja ... [indistinct].
COURT: Okay, anything else, meneer?
MR P[...]: Your Worship, then in the same breath I just want to say as I said
previously, I have put myself through this three tim es for tests and it was
never - my understanding now is that when an order like that goes out I can
be warned that should I refuse that my credibility throughout the hearing can
be disregarded or tainted or whatever. And it is upon that that I am saying I
am not going for a fourth one, Your Worship."
[22] The maintenance court ruled that the appellant did not need to submit to a
fourth test. Essentially, it found that no other court hearing the matter had made any
findings on the tests that had previously been done and that the maintenance court
should thus have the opportunity to do so. Some extracts from the ex temporae
ruling read as follows:
"No findings were even made on those tests in terms of how the Court must
accept it into record or not. According to the information received by the
maintenance officer, by Mr P[...] and by yourself, Mr Joubert [the
representative of the respondent}, we all agree that it is not in dispute that no
findings in terms of admissibility was made in respect of the scientific tests.
The Court must be awarded an opportunity to make those findings on its own.
…
There were no findings made on that test and the Court should be given an
opportunity to do that using the Maintenance Act and the Children 's Act
together. So in respect of the finding whether Mr P[...] must go for a fo urth
blood tests. The Court is not going to grant that and the request for the fourth
scientific test is not granted, we will continue with what we have. That is the
final order of this Court in respect of the fourth test. The Court is then ready to
proceed in terms of making finding on what the maintenance has to present to
this Court."
[23] The balance of the transcript concerns the evidence of the respondent and
the appellant regarding the question the maintenance court was considering, namely,
whether the appellant was Z[...]'s biological father. We deal with that evidence later.
For present purposes it is noteworthy that the three tests referred to above were
discussed in the evidence. While the appellant did engage with them, he consistently
said that questions regarding their utility were questions that needed to be directed
to experts.
The status and admissibility of the paternity tests and other documents
[24] No expert evidence was led at the hearing. However, after the evidence was
concluded and dates had been discussed for the filing of heads of argument, the
following occurred:
COURT: And then, is there anything else before we read out the
postponement date that you would like to hand in to the Court?
MAINTENANCE OFFICER: Yes, Your Worship, /w ould like to hand the
paternity tests results for 2001 and 2016.
COURT: Okay, and what happened to the 2019 results?
MAINTENANCE OFFICER: I do not know, Your Worship, whether I should
hand that one in.
COURT: The Court will make a decision about that.
MAINTENANCE OFFICER: Alright.
MR P[...]: Sorry, Your Worship. Can I also hand up my pack?
COURT: Yes.
MR P[...]: The main reason/or it is that there was a time when the file was in
disarray. That is why I just want to hand up mine.
COURT: Okay, you can do that. It should be in there. Did you already submit
it into the maintenance officer's file?
MR P[...]: I do not know if it is there Your Worship.
COURT: Okay, we will check quickly.
MR P[...]: It is a different set of documents that I just want to [indistinct}
COURT: Is the 2019 results attached to that?
MR P[...]: Yes, Your Worship.
COURT: Can I just look at that and then if it is the same. /just want to have a
look quickly and then I can confirm if it is here, otherwise you are going to
have to have a look. It is here.
MAINTENANCE OFFICER: Okay.
COURT: From your side, meneer?
MR HILTERMANN: [the respondent's representative} Your Worship, would it
be possible to also have a copy of that?
COURT: The results?
MR HILTERMANN: Yes.
COURT: Okay.
MR P[...]: I can give him a copy.
COURT: Okay,just check there because according to the know ledge of the
Court now what he is speaking about - okay, I do not see - it is just before the
SANAS letter marked 3 December. Okay, and then we have the 11 April 2017
result which we refer to as the 2016 in the testimony and then let me just
make sure. Oh, the 2001 results, I have that and I have the 2016 and the
2019. Okay. You have everything there, meneer, that you requested?
MR HILTERMANN: I believe so, Your Worship.
COURT:· The Court then postpones this matter to ..."
[25] The appellant dealt with the three tests in the heads of argument he filed with
the maintenance court. They were also included in a bundle of documents he
submitted with those heads. Those heads contained the following submissions:
"The legal representative and the maintenance offic er referred to the DNA
tests which were performed in this matter. I will deal with these and refer to
the documents which are in the court file and compiled in a bundle prepared
by me in support of these heads.
It is clear from the applicant's legal repres entative and the maintenance
officer's questions directed to me that they both rely on the Second DNA test,
which was issued by MDS and is dated 11 April 2017 ....
MDS also furnished a third DNA test in the matter dated 3 December 2019.
Attached to this third test is an email, dated 4 December 2019, which I have
referred to in my evidence and it is to this email I wish to refer to as a point of
departure because this email is sent by Dr York, who has issued both the
second and the third DNA results. This will illustrate clearly my submissions
that Dr. York and MDS' findings in both tests should be rejected. The email is
dated 4 December 2019 from Dr Denis York to various persons including Mr
Mapara. The email can be found on page 10 of my bundle."
[26] The relevant part of Dr York's email of 4 December 2019 reads as follows:
[26] The relevant part of Dr York's email of 4 December 2019 reads as follows:
"Please note that there was a delay in the arrival of the new paternity kit that
we were going to use to analyse the extra loci. In view of the delay I decided
to courier the recentl y collected samples from the clients in this case to an
ISO 17025 accredited laboratory in Germany as they were able to analyse the
extra loci. I was assured that the results would be ready by the 3 rd December
in time for the next court date ...
We receive d the results but the results are in German so we decided to
incorporate their result into our report (please see attached).
In total 29 loci were analysed (8 more than the number we analysed and
nearly 3 time the number analysed in the first report). The calculated
probability of paternity is greater than 99.9999% even taking into account the
two previously identified loci where there is a single allele mismatch. No
additional mismatches were detected in the additional loci tested."
[27] The appellant identified three difficulties arising from that email in his heads of
argument filed with the maintenance court:
"The first problem I have with what is stated by Dr York is that if the results
were sent to a German Laboratory, that laboratory would have used a
database for population groups in Germany. This is contrary to 3.8.1 of the
SANAS Technical requirements on page 17 of the bundle, which stipulate that
the laboratory SHALL use population data for the relevant population groups.
The German laboratory mu st have used their German database which is not
applicable and relevant to this case.
The second problem I have with what is stated by Dr York is that MDS did not
do the analyses but presents the findings of another laboratory by
incorporating it into thei r report. This constitutes fraud and is unethical
conduct by Dr York and his laboratory.
This is also not compliant with the evidential requirements of documentary
evidence, since it is not an original report firstly, and secondly, the information
included in this third result, does not fall within the personal knowledge of Dr
York.
No mention is made of who translated the DNA result from German into
English.
No mention is made of the "courier" and whether the technical requirements
were complied with as far as this is concerned as per 3.7.2 on page 17 of the
bundle.
…
As a result of the inadmissibility of the third result, the unethical and dare I
submit fraudu lent conduct of Dr York and his laboratory, I submit that both
results, including the second DNA result (which I submit is in any event
inconclusive), from Dr York and MDS are unreliable, and I respectfully request
that the honourable court rejects both th e DNA results from MDS on the basis
of their unethical practices described hereabove alone."
[28] The appellant's heads in the maintenance court went on to submit that the
second test was inconclusive. In doing so the appellant referred to another email
from Dr York, dated 10 February 2018 and which the appellant described as giving
" ... a clearer understanding of the test result".
[29] What follows is an extract from the 10 February 2018 email, which was also
discussed in the evidence:
"In essence the re are two mismatches between Mr P[...] and child Z[...].
Normally two or more mismatches are excluded however other factors need
to be taken into account.
Mismatches can be due to the fact that the person is not related. However,
they can also result from nat ural mutations which is likely they cause here
because they are single step mutations and also based on the additional loci
we analysed. Mutations (changes in the DNA) occur naturally and randomly at
different rates at different parts of our DNA - the fact that mutations occur is
the reason we can use these segments of DNA for identification purposes - so
you can have a situation where one of the alleles that is expected in the true
biological fathers DNA is not present. However two is not common although in
this case one mutation might be from the father and the other from the mother.
Another explanation for the mismatches could be that the alleged father is
Another explanation for the mismatches could be that the alleged father is
indeed not the biological father but a brother or close male relative of the true
biological father. We therefore state that our calculations are based on the
man in question is a random man (not a close relative) and that should a
close relative exist who could be the biological father then that male should
also be considered and tested. The situation w here the profile of the alleged
father (with two or more mutations) is actually not the biological father could
also occur more frequently in communities where there are relationships
amongst very close relatives. However, analysing more loci improves the
power of the paternity. In the case of this paternity we analysed five additional
loci (a total of 20) and reported a probability of paternity of > 99.9999% which
is convincing. However, it still remains that with two mutations one does need
to consider other close male relatives and if they exist they should be tested. "
[30] The appellant's heads in the maintenance court went on to make the following
submissions:
"I submit that the above statements made by Dr York in this email show that
the result presented in the second test include all the above findings. It is thus
not a clear finding in that the possibilities or probabilities mentioned
hereabove form part of the finding.
In other words, the finding made in the second test it could be that I am t he
biological father, or it could be that a close male relative could be the father
and I am not the biological father, or that it could be that there are mutations,
or that existing possibility that there may have been close relationships in the
community.
I therefore respectfully submit that the result in the second DNA test is in any
event inconclusive since the finding includes too many probabilities."
[31] The appellant also drew attention to another letter Dr York authored, and to
other criticism h e made in respect of the second test in the heads he submitted to
the maintenance court.
[32] The maintenance court considered the three tests in its judgment. It
concluded they had been submitted without objection, save for the appellant's
concluded they had been submitted without objection, save for the appellant's
submissions as to the content of the second and third tests. It also made reference
to section 12 of the Maintenance Act, 99 of 1998 (" the Maintenance Act ") and to
section 22 of the Civil Proceedings Evidence Act, 25 of 1965 ("the CPEA"). Although
not entirely clear, it seems the maintenance court may have considered that the
three tests could be introduced by relying on those statutory provisions.
[33] The maintenance court ultimately disregarded the third test, largely given its
lack of knowledge regarding the concerns the appellant raised about it bei ng done in
Germany that we have cited above. The court went on to say the following about the
first and second tests:
"The court is satisfied that th e second test done in 2016 complied with high
standards of probative value as the Molecular Diagnostice [sic] Service is
SANUS approved, with strict procedures and standards; the same cannot be
said of UNISTEL [the laboratory that carried out the first tes t]. The respondent
also failed to rebut the prima facie proof of the 2016 results delivered, and his
objections raised in this test cannot succeed. The fact that more markers were
used in the second test is of value in reaching a more accurate result. In l ight
of the above, the court found that the probative value of the second test was
far greater than that of the 2001 test."
[34] On appeal the appellant submits that none of the documents constituting the
reports of the first to third tests ought to hav e been admitted by the maintenance
court. He also submits that, even if those documents could be admitted, nothing can
be derived from them because they are at best unverified expert opinion. The impact
of those submissions is that the maintenance court sh ould have entirely disregarded
the three tests when coming to its conclusions.
[35] Section 10(5) of the Maintenance Act states that except where specifically
provided, the law of evidence, including the law relating to the competency,
compellability, ex amination and cross -examination of witnesses, as applicable in
respect of civil proceedings in a magistrate's court, shall apply in respect of a
maintenance enquiry.
maintenance enquiry.
[36] Instead of calling Dr York to testify, the respondent's former representatives
sought to rely on his correspondence, including that of 10 February 2018 cited above.
The following extracts from the cross -examination of Mr P[...] shows that those
representatives considered that that was insufficient evidence to enable the court to
deal with t he DNA evidence before it (the exchanges were lengthy and the account
below is abridged):
"MR P[...]: Mr Hiltermann - Your Worship, Mr Hiltermann is asking me
questions with regards to scientific tests that were done and I do agree that I
did mention them an d I did mention the exclusions and I said that is exactly
what I have learnt over this period of time, but I do want to take Mr Hiltermann
just back because he is looking at a test - can you just give me one second,
Your Worship? !just want to find the pro per documentation here. So, from -
and this was in - this was 10 February 2018 from Dr Dennis York and I just
want to quote part of his email that I want to read out. He says:
[Mr P[...] quote extracts from the 10 February 2018 email]
And then that is an email, Your Worship, and then there is a letter that Dr York
sent again and I think it is on the file. Mr Hiltermann, I think you have it. You
mentioned it when we were here the last time where he is saying, 'I do not
state. - "We do not state the Mr P[...] is the biological father of Z[...]"
Once again, you cannot just bluntly look at what the - what the piece of paper
what they state on there. It should be analysed by the experts and then they
can explain to you.
MR HILTERMANN: I agree.
MR P[...]: That is the emails that we received from the doctor.
MR HILTERMANN: Yes, so in regards to Dr York's letter and his evidence
dated 1 June 2017 it was an annexure to Magistrate Boltman 's recusal
application and your submission is that, and I agree with that, that we are not
experts in this DNA field and we must rely on experts in this regard and in this
[indistinct] I rely on Dr York's evidence and where his submission, you know, it
states whilst two mismatches were detected, his submission as an expert is it
states whilst two mismatches were detected, his submission as an expert is it
would be inc orrect to automatically exclude Mr P[...] as being the true
biological father, especially as calculated the probability of paternity is greater
than 99.9 percent. This is greater than the 99.8 percent cut -off in the SANAS
guidelines ...
So Mr P[...], I put to you that would it not be correct to rely on the experts'
evidence, Mr York in this case, as a basis for assessing the reliability of and
reliance to be placed on this 2016 test?
MR P[...]: I just want to quickly answer on the latter part. I just want to star t
there. Magistrate Boltman did not hear any evidence. I know that she
mentioned there about evidence. She did not hear any evidence. This case
was never really before her. She looked at paperwork and then made a
decision. However, let us quickly go back again and we are just going to go to
the 2016 test as you refer to Dr York saying all these things. Dr York came
and he testified. Unfortunately, Mr Hiltermann, you were not there, Your
Worship, and more things came out. More things were broken down
scientifically and then, as you say, it is a blanket statement. He also made a
banket statement by saying he exceeded SANAS regulations. We also had
SANAS here testifying, so we had all the experts and there is a reason, Your
Worship, that we went through that wh ole testimony of Dr York and that is
why I say his testimony - ach, his credibility is tainted for what he did and the
way he answered things because it is only how he wanted to do things ...
[There then followed an exchange about the conclusiveness or oth erwise of
the second test}
MR P[...]: It is inconclusive because that paper you are reading from, Mr
Hiltermann, was prior to Dr York's testimony. When Dr York came to testify
the test was broken down scientifically and that is where we came to the
inconclusiveness of that test.
MR HILTERMANN: Thank you, Mr P[...], and it was on your basis of objecting
to this test that a further test was ordered. Is that correct?
MR P[...]: Uhm, no, I did not object to that test why the third test was. After
evidence was led, after the scientific evi dence was led, after the test was
broken down a mero motu from - a mero motu order from Magistrate Bruck
broken down a mero motu from - a mero motu order from Magistrate Bruck
was just made, go for another test. I could not understand at the point why
because it was clear. I had an attorney at that point and he wanted to spea k
to the magistrate and she said no, that is final and that is it. Uhm, that is it.
MR HILTERMANN: You see, Mr P[...], you mentioned this report of Dr York's
amended conclusion. Do you have knowledge of where this report is located?
I say this under the cont ext of Magistrate Bruck's recusal ruling which stated
the numerous attempts where you [indistinct] undertook to try and gain access
to the contents of the record of this matter with yourself and your previous
attorneys and we had experienced great difficulty in this regard and it appears
that, you know, we are still hamstrung to a certain extent by the lack of
delivery in this regard ...
MR P[...]: Okay, Mr Hiltermann, I was ordered to hand over transcripts of the
record at my cost to the complainant. I paid R2 000 for one page, so there
was a system error. That is all I can think but we went back and forth and
back and forth to the extent, Your Worship, that I was almost treated like a
criminal ...
MR HILTERMANN: So, Mr P[...], are you aware that the applicant' s attorneys
came on record on a pro bono basis after all the evidence from the relevant
medical experts and including Dr York was already heard by Magistrate Bruck.
Can you confirm that?
…
MR HILTERMANN: Mr P[...], are you aware that after the applicant's attorneys
came on record all requests to obtain the court record with the testimonies
which was heard did not yield any results in that the record could not be found
and this could not be transcribed?
MR P[...]: I believe the record could not be found, ja.
MR HIL TERMANN: Okay. So then on this basis of incomplete information
surely you must concede that there are reasons why this Court is not actually
fully able to consider the DNA tests in conjunction with the evidence that was
given by the medical experts who interpreted the tests?
…
MR HILTERMANN: Mr P[...], I acknowledge that and I am not here to allege
blame in that regard. I merely want you to submit that the position is currently
that for whatever reason and for whoever 's fault it may be we are currently in
a position where the Court is not able to fully consider these DNA tests in
conjunction with the evidence that you have previously mentioned and given
by the medical experts interpreted and testified to these tests.
by the medical experts interpreted and testified to these tests.
MR P[...]: I cannot agree. I cannot agree w ith that statement, Your Worship.
We currently have three tests on record. The first one, which says paternity
excluded. Nothing wrong with that test. Absolutely nothing wrong with that
test."
[37] Without more, and ignoring statutory provisions dealing with specific
circumstances, documentary evidence will only be admitted as evidence where the
original document is produced and its authenticity is established.
[38] Authenticity essentially means establishing what the document is and that
what is handed in has not been altered. In a straightforward case those requirements
are established by calling the author of the document to testify as to its originality,
what it is (for example, a letter written on a particular date) and that the writing has
not been altered or tampered with.
[39] The mere admission of a document into evidence does not entail admission of
evidence as to its contents. For example, the admission of a letter recording that
certain events occurred will not constitute proof of those eve nts. At best, it will
establish that the author wrote about them on a particular date.
[40] The mere admission of a document may however have probative value. The
most obvious example is where the signing of a document has a legal implication in
and of itself. Examples of this might be the conclusion of a contract or the execution
of a will. But the admissio n of documents can also serve to introduce evidence of a
contemporaneous nature that may be relied upon to buttress other evidence before
the court.
[41] For example, a letter that is admitted into evidence and which records that on
a certain date the author saw a certain person at a certain place can serve to
buttress oral evidence from the observed person that they were at that place on that
date, even if no one is called to confirm the facts set out in the letter.
[42] That is because the contemporaneous nature of the letter tends to support the
probabilities of the oral evidence being true. The weight of that evidence will depend
on the circumstances. For example, if the letter is written after the relevant person' s
on the circumstances. For example, if the letter is written after the relevant person' s
whereabouts on the day in question have become contentious, or the author is
somehow associated with that person, the mere admission of the letter may have
virtually no probative value. On the other hand, if the letter was authored by an
independent thir d party at a time when the relevant person's whereabouts were
uncontentious, it might well be relied upon by that person to buttress their evidence
as to their whereabouts on the relevant day. A similar situation pertains to
correspondence authored by an opposing party: The fact that a defendant authored
a letter confirming they committed an unlawful act might be relied upon by another
as evidence that the defendant did so, even if no other evidence is led as to the
accuracy of the contents of that letter.
[43] The strict principles regarding the admissibility of documents are often not
enforced by litigants for reasons of practicality, at least in civil cases. Matters
involving large volumes of correspondence that is not really contentious would be
unduly drawn out if every document had to be individually proved. In many cases
parties will conclude an agreement as to the status of documents that have been
discovered or that are included in a trial bundle. Typically the effect of those
agreements is to imp ose a default position that all documents may be admitted,
while reserving to the parties a right to challenge those they consider are contentious.
[44] Expert evidence can broadly be described as an exception to the general rule
that opinion evidence is inadmissible. Essentially, such evidence is permitted where
a court requires assistance in areas of expertise it does not possess in order to
determine an issue before it. The wide extent of specialised knowledge in modem
society means that expert evidence is often required. For example, a court may
require input from structural engineers to understand why a building collapsed, from
doctors to understand the time a person died, and even from lawyers to understand
foreign law. To avoid parties being taken by surprise, court rules require that parties
foreign law. To avoid parties being taken by surprise, court rules require that parties
in civil cases who intend to call expert evidence must give notice of their intention to
do so, and to provide a summary of the relevant expert's opinions.
[45] As submitted by the appellant in his heads of ar gument, a court will be guided
by expert evidence but will not be led by it. The ultimate determination of a case
remains the function of the court, and while it is required to weigh expert evidence in
the course of its decision, it does not delegate its d ecision-making function to the
experts that appear before it. In contested cases that may involve the Court
preferring the evidence of one expert over another. Conceptually, such a decision
involves a court taking a preference on matters of opinion, not ma tters of fact. Those
disputed opinions are adjudicated by hearing testimony from the experts, with their
views being tested by cross-examination.
[46] Practical considerations also apply when it comes to expert evidence. Courts
encourage the limitation of disputes on matters of opinion between experts, and
experts often meet before a hearing to seek to find areas of agreement. That agreed
matter is then taken out of issue and will typically be accepted by the Court without
further investigation.
[47] The results of the three paternity tests and the emails from Dr York referred to
above are all documentary evidence.
[48] Each paternity test records the results of the application of a scientific process
on a certain date to specimens purportedly provided by the appellant, the respondent
and Z[...]. They also contain an opinion on those results, namely, the likelihood of the
appellant being Z[...]'s biological father.
[49] For the most part, Dr York's email of 10 February 2018 constitutes an expert
opinion on t he results of the second test and why a mismatch of two loci does not
serve to mean that the appellant cannot be Z[...]'s father. On the contrary, the email
concludes that the testing reveals that it is highly likely that the appellant is Z[...]'s
father.
[50] Although no witnesses were called to testify as to the originality and
authenticity of the those documents, we do not consider the maintenance court was
precluded from admitting them into evidence.
[51] As we have shown, there was never any dispute that the three tests had been
undertaken on about the dates indicated or that Dr York sent his email to the
maintenance officer on 10 February 2018. Except possibly in respect of the third
maintenance officer on 10 February 2018. Except possibly in respect of the third
tests there was also no serious dispute as to the outcome of the scient ific testing, in
the sense that that testing identified similarities and dissimilarities between the
genetic material submitted by the appellant, the respondent and Z[...].
[52] Moreover, and as appears from the lengthy summaries of the record we have
set out above, it seems to us that throughout the proceedings the appellant clearly
indicated his satisfaction that the Court could have regard to those documents.
[53] Not only did he refer to those documents when motivating why a fourth test
should not be or dered, he made no objection when the Maintenance Officer handed
up the tests at the end of the proceedings. On the contrary, the appellant handed up
his own ''pack" of documentation, and also included the test results in the pack
accompanying his heads of argument, which heads discussed the tests at length.
The appellant also discussed the tests in his evidence, including the evidence that
was led regarding them before a previous Magistrate, and at one point said that
there were three tests on record. Suc h conduct would leave it in no doubt to the
maintenance court, the respondent and the maintenance officer that those test
results were to form part of the record.
[54] The appellant's reliance on the three tests must also be considered in the
greater context, namely, that the testing was directed by the Court. As the party
directing the testing be undertaken, it would have been strange, absent a formal
objection to their inclusion, if the tests did not form part of the record.
[55] In our view it is not open for the appellant to contest the admission of those
documents on appeal, or to aver that the court should have determined the matter as
if they were not before it.
[56] Whether everything said in those documents must be accepted by the court is
a different enquiry.
[57] As we have said, the fact that the three tests took place, and the approximate
timing thereof, was common cause from the oral evidence. However , and as
timing thereof, was common cause from the oral evidence. However , and as
indicated, the documents do more than merely provide evidence that paternity
testing occurred. They also reveal the results of those tests and contain an
expression of an opinion on what those results mean in the context of whether or not
the appellant is Z[...]'s father.
[58] It was really the latter question that was in issue before the maintenance court.
That is appropriately described as a question of expert evidence.
[59] Succinctly stated, the appellant relied on the fact that all three tests revealed a
mis-match in two loci tested. The appellant placed importance on that because the
SANAS requirements state that paternity shall be excluded if there is a mis -match
between two or more loci. The 10 February 2018 email from Dr York acknowledges
that the first and second tests identify a mis -match between two or more loci, but
says that that does not necessarily mean the appellant is not Z[...]'s father. The
appellant relied on that email to contend that there is insufficient certainty from the
testing to conclude he is Z[...]'s biological father. He also said there was evidence of
fraud on Dr York's behalf. We do not consider that that allegation is fairly drawn on
the papers the appellant relied upon.
[60] The appellant also relied on other factors, such as his contention that because
the laboratories that conducted the second and third tests were not based in the
Western Cape, they considered the test results against an inappropriate population
group.
[61] Insofar as the appellant contends that the m aintenance court was precluded
from accepting as evidence the expert conclusions in the test results and Dr York's
email of 10 February 2018, we consider that submission is correctly made.
[62] Such an approach is appropriate because it provides safeguard s to prevent a
court relying on untested evidence. For example, we know that Dr York previously
testified in the very same matter as regards the second test. As we see it there is no
meaningful indication in the transcript as to why he was not called whe n the matter
was heard again, and he was thus a competent and compellable witness. For all we
was heard again, and he was thus a competent and compellable witness. For all we
know, Dr York might have refused to testify because he had adopted the position
that the views expressed in the second and third reports or his emails would not
withstand scrutiny. Alternatively, it might be that he was not called because the
respondent was unable to cover his fee. There are any number of possibilities, and
the way to circumvent them would be to call Dr York to explain his views, or to at
least explain why he was not being called.
[63] We nevertheless consider that the test results and Dr York's email of 10
February 2018 may have some probative value purely as a result of those
documents being admitted into evidence.
[64] That DNA testing can reli ably be used to determine paternity is a fact so
notorious that a court may accept it without evidence. This is underscored by the fact
that courts may direct such testing to take place in cases where paternity is disputed.
There is no obligation on a part y seeking such a direction to lead expert evidence to
show that it may assist in the determination of that question.
[65] On the face of it, the test results reveal that such testing was undertaken
(something that was in fact common cause).
[66] They als o reveal that the first test excluded paternity because there were
mismatches in respect of two loci; that the second and third tests also showed such
a mismatch but nevertheless concluded a high likelihood of the appellant's paternity;
that, save in one respect, all three tests produced the same results for the common
loci tested (the second test tested more loci than the first, and the thir d tested even
more); and that Dr York considers that the two loci mismatch nevertheless leaves it
highly probable that the appellant is Z[...]'s father.
[67] Those considerations render the test results and Dr York's email similar to the
contents of the letter in the hypothetical example given above, i.e, where that letter is
admitted into evidence without the contents being proved: The fact that an accepted
approach for determining paternity produced a result indicating that there is a
material commonality of genetic material between the appellant and Z[...] may serve
to augment other evidence placed before the court regarding his paternity, even if
to augment other evidence placed before the court regarding his paternity, even if
the court does not accept the expert evidence embedded in the test results and in Dr
York's email.
[68] Stated differently, while the question of whether the appellant's paternity was
established to the extent required by SANAS or the scientific community generally
could not be established on the mere admission of the test results and Dr York's
2018 email, the admi ssion of those documents could be used to buttress other
evidence that the appellant was Z[...]'s father because they prima facie indicate that
the appellant and Z[...] are related.
[69] To be clear, we agree with the appellant's submission to the effect that
contested expert evidence should typically be given viva voce. We are also not to be
seen as suggesting that a party who intends to rely on expert evidence can do so
upon reliance on an expert summary without leading the expert in question. We are
simply saying that, in civil cases where a court is presented with expert evidence
constituting the results of an accepted scientific technique or commentary thereon, it
may in appropriate circumstances be relied upon to buttress other evidence aligned
to such results. The extent to which a court may do so will depend on the facts of the
given case, and typically a party would be best served by calling evidence to confirm
the results of the tests in question.
[70] Section 12(3) of the Maintenance Act makes spec ial provision for the
admission of statements in proceedings before maintenance courts. It provides that:
"Any person against whom a maintenance order may be made under this Act
may before or during the enquiry come to an arrangement with the
maintenance officer that any statement referred to in subsection (1),
notwithstanding the fact that it was not served on him or her in terms of
subsection (2), may be submitted as evidence, whereupon such statement
may on its production at the enquiry be admitted as evidence in the enquiry. "
[71] Although both parties claimed to rely on the content of Dr York's email of 10
February 2018, that was arguably inadequate to constitute the sort of agreement
February 2018, that was arguably inadequate to constitute the sort of agreement
contemplated in section 12(3). We also agree with the appellant's submission that
the requirements of section 22 of the CPEA were not met in this case, either with
regard to the results of the three paternity tests or Dr York's email.
[72] We thus respectfully differ from the maintenance court that the test results
and Dr York's emails could be admitted in terms of section 22 of the CPEA or section
12 of the Maintenance Act, and conclude that insofar as it admitted them on that
basis that amounted to a misdirection on its part. It follows that in our view it was not
open for the maintenance court to weigh the first and second reports as it sought to
do in the passage from its judgment cited above.
[73] We do however consider that the maintenance court was permitted to note
that, on the face of it, the results produced b y the three tests was generally
consistent, in the sense that where the same loci were tested, the outcomes were
almost invariably the same across all three tests.
[74] We also consider that the Court was entitled to note that MDS, the firm that
carried out the second and third tests, was SANAS accredited, and that the firm that
carried out the first test, UNISTEL, indicated that correlation between all nine loci
tested would provide substantial certainty ("groot sekerheid'') of paternity.
[75] Furthermore, we consider that the maintenance court could review the
SANAS guidelines (also included with the appellant's heads) to ascertain that
SANAS required testing to be done to certain standards, that it required the
probability of paternity to be greater tha n 99.8% before a report could be issued that
the alleged father was not excluded as being the biological father, and that paternity
should be excluded on a mismatch of two or more loci.
[76] Finally, we consider that the Court was entitled to place some weight on the
fact that the two of the three tests that indicated a probability of paternity indicated a
high probability percentage, and that no expert evidence was led - documentary or
otherwise - to challenge that calculation, even on a purely statistic al basis (i.e.: on
the assumption that the testing was otherwise accurate).
the assumption that the testing was otherwise accurate).
[77] We consider that the combined effect of those facts entitled the Court to find,
prima facie, that the testing it had ordered indicated that there was a material degree
of genetic commonality between the appellant and Z[...].
The evidence of the parties
[78] In this case the Court did not only have the results of the paternity tests and
Dr York's email before it. It also had the evidence of the appellant and the
respondent.
[79] This cumulative effect of the evidence appears to have been largely
overlooked in the debates that took place in the maintenance court. For instance, the
appellant placed some store on the fact that under all of the tests the two -loci
mismatch threshold of the SANAS guidelines was exceeded. However, and like the
expert evidence of Dr York, the court was not obliged to be led by that standard
when considering the question it was required to investigate: The court was seeking
to establish paternity on the probabilities, which is not necessarily the threshold
contemplated by the SANAS guidelines.
[80] There was no evidence to suggest that the SANAS guidelines produce a
result on the probabilities. On the contrary, those guidelines suggest that a much
higher threshold is required before paternity will be confirmed. Furthermore, it is plain
that the SANAS guidelines work on the basis that the only information considered in
the determination of paternity are the samples received from the relevant mother,
child and potential father. The court has additional information, in the form of the
testimony it receives. Indeed, DNA testing is not obligatory in paternity disputes and
section 36 of the Children's Act, 38 of 2005, creates a statutory presumption of
paternity in certain circumstances.
[81] As indicated above, the appellant has raised a multitude of challenges to the
findings the maintenance court made on the facts of the matter.
[82] In our view, there is a substantial degree of overlap in some of the criticisms.
We also consider that some of them are unhelpful because they do not rea lly have a
bearing on the ultimate issue in the case.
[83] At the outset, and being a case about paternity, a central enquiry is about
[83] At the outset, and being a case about paternity, a central enquiry is about
whether, on the probabilities, the appellant and the respondent had sexual
intercourse at around the time Z[...] was conceived. There was no dispute that Z[...]
was conceived and that the respondent is his mother. While some form of
insemination can't automatically be ruled out, the starting point is that she had sexual
intercourse with someone at the time of conception. The qu estion is whether, on the
probabilities, that person was the appellant.
[84] The decision in Mayer v Williams 1981 (3) SA 348 (AD) is a reminder that
special caution must be applied when evaluating the evidence in cases of this sort.
That however does not mean that inconsistencies in the respondent's version means
that her version should be rejected or that her entire account is a fabrication.
[85] The respondent testified that that Z[...] was born on 23 May 2001 and that she
was pregnant for 42 weeks at t he time he was born. That evidence, which was not
seriously disputed, puts the date of conception around early August 2000.
[86] The respondent said that she met the appellant in 1999 at a nightclub called
Planet Bar, and that they commenced a sexual rela tionship some time after the
appellant opened a sports bar called " Old Trafford". The respondent referred to her
and the appellant being "involved'', which she confirmed was a reference to a sexual
relationship. We understand the following extract from her evidence to be that they
would have sexual intercourse at an upstairs section at the Old Trafford sports bar:
"COURT: Okay, go ahead. We are still interested in you explaining your
involvement with the meneer, how did that take place.
MS W[...]: Ja. So basically after closing time we would be at the place. He had
an upstairs, there were steps going up. So there was like a matrass thing
there. So,ja, and do not know if he asked his sister if I could stay there. I still
do not know. I am assuming it was him who spoke to her, because like I said
we did not - we did not have a friendship or anything. But then he also helped
we did not - we did not have a friendship or anything. But then he also helped
me with a bed. I do not know if he gave me the TV then. But then I was
staying up with her... [indistinct]."
[87] The respondent testifi ed that she broke the relationship off when she
discovered that the appellant was engaged to marry someone else. She said that
after living with the appellant's sister for a while she moved to a place called
Glenhaven, and that it was there that Z[...] was conceived on an occasion when she
and the appellant had sexual intercourse there.
[88] The respondent said that she initially didn't realise that she was pregnant. She
had been using birth control on the occasions she had been intimate with the
appellant, but on the occasion they had intercourse in Glenhaven she was on a
course of antibiotics, which she understood had rendered her contraception
ineffective.
[89] The respondent also testified that she heard nothing from the appellant until
about February 20 01, when she claimed to have been between six and seven
months pregnant (the respondent's evidence regarding her contact with the appellant
between Z[...] being conceived and February 2001 was unclear and inconsistent).
Assuming a conception date of early Au gust 2000, the respondent would have been
six months pregnant early in February 2001 and seven months pregnant early in
March. The respondent said that they met at Glenhaven and had intercourse again.
[90] The above summary largely emerges from the follow ing extract from the
transcript of the respondent's evidence in chief:
"MS W[...]: His [the appellant's] sister met her previous husband. He had
passed on. So she obviously moved in with him eventually. He used to come
visit there, Hepurn. But then she decided to move and obviously I had to get
another place.
COURT: Okay. So how long did you stay with his sister?
MS W[...]: Only a few months probably. Less than a year. Definitely less than
a year.
COURT: And then where did you move to?
MS W[...]: From where - oh, let me see. Did I go from there to Glenhaven?
COURT: Okay. Go ahead.
MS W[...]: Yes. From there I went to Glenhaven. I was working at Parow
Library at the time. E[...] [the appellant] came to visit me there. I cannot
remember how he knew I was there, but I still had his bed. I think I had his TV.
I was on antibio tics. So Z[...] was conceived while I was on antibiotics. And
after I broke it off - I am taking responsibility. I am not blaming, please. I am
not blaming. So that was the time. So we had sexual intercourse and Z[...]...
[intervenes]
COURT: In Glenhaven?
MS W[...]: In Glenhaven. That I believe is where Zekr [sic ] was conceived. I
was always on - what is that - I am almost said Tramadol. There is - what do
you call this birth control pills? But ja, which I could not understand. Then I
found out that the antibi otics cancels it ja. From there I moved. , I think seven
months he disappeared. E[...] disappeared. I called - I do not know if I called
his sister or I still had his number, but just to tell him that I was pregnant ja.
COURT: When did you tell him you wer e pregnant? Were you pregnant or
was the baby born already?
MS W[...]: No, I was pregnant. I told him that I was pregnant. But after I told
him I was pregnant I hardly saw him. But not that he came there quite often,
but he disappeared until I saw him whe n he [sic ] was seven months. I was
seven months, in February. I know it was February that he came to
Glenhaven again.
COURT: Were you in February seven months pregnant?
MS W[...]: Yes, somewhere along the line six, seven. I cannot remember.
COURT· Six to seven months.
MS W[...]: But I know I saw him the last time in February.
COURT: You saw Mr P[...] in February last?
MS W[...]: I saw him in February 2001. That I know for a fact. Do not ask me
how, but I know that, February. Then ... [intervenes]
COURT: Was it also in Glenhaven?
MS W[...]: Also in Glenhaven.
COURT: What was the encounter about?
MS W[...]: The encounter was just, I am thinking he here to support. You know
just being there. But we had sexual intercourse. I think it was just a sexual
relationship. I just got carried away possibly.
COURT: Okay. But now when you said you saw Mr P[...] February 2001 last.
Now obviously I have to ask was the child born already?
MS W[...]: No.
COURT: No. Just give me a second. And what happened on that day?
MS W[...]: Not really much, because he was always tensed and stressed. I
know like even in the past I used to always massage him. So there was not
much talk about the baby and stuff like that I can recall. But I just assumed he
would always be around. Whether I saw him every now and then, I just did not
expect him to disappear.
COURT: And then did you have sexual intercourse there also?
MS W[...]: Yes, Your Worship. He was driving an Audi that time, a white Audi,
Ja.
COURT: So if you can - if you can time your relationship with Mr P[...], you
said it end in February 2001 and it started?
MS W[...]: 1999 with the flirting and then eventuall y - if he can say when he
opened Old Trafford then I would know ...[intervenes]
COURT: And when did the sexual relation start?
MS W[...]: At Old Trafford when he opened that place.
COURT: During that whole period?
MS W[...]: From the time he was there. I do not know for how long Old
Trafford was open as well. It was not for long.
COURT: But now if somebody should ask you and maybe this is an unfair
question, I do not know ...[intervenes]
MS W[...]: It is fine.
COURT: You will know. If somebody should ask you how many times you had
sexual intercourse with Mr P[...] would you be able to say?
MS W[...]: I do not think so.
COURT: And the reason why you would not be able to say is because?
MS W[...]: I did not count.
COURT: No, no, I know you did not count. But ...[intervenes]
MS W[...]: But ja. No, I do not mind the question.
COURT: Okay.
MS W[...]: But I mean, going back I cannot think how many times of course
not.
COURT: Would you say it is a lot or a little?
MS W[...]: It is not a little I would say. It is not little.
[91] We must say that, at least from the transcript of the proceedings, the
respondent presented as a relatively poor witness. Her evidence was often unclear
and inconsistent, especially when it came to the timeline of events. That is no doubt
in part because she was testifying to events that occurred more than 20 years earlier.
It should be noted that Z[...] is apparently now a self -supporting adult, and the
proceedings in 2016 were instituted at his instance, so the respondent says, in ord er
to get some clarity as to the identity of his father. While the case has been brought in
the maintenance court, it is for all practical purposes nothing more than an enquiry
into paternity.
[92] An example of an inconsistency in the respondent's eviden ce that the
appellant has focussed on is where Z[...] was conceived. He complains that the
respondent was ambivalent as to whether that occurred in Glenhaven or at the Old
Trafford sports bar. That emerged from the following exchange of evidence when the
respondent was being cross-examined by the appellant, shortly after it had been put
to her (and she had not disputed) that she had started frequenting the Old Trafford
sports bar between the end of July and the end of August 1999:
MR P[...]: Okay, Your Worsh ip, I just want to then say that your answer
when exactly-when exactly did you fall pregnant?
MS W[...]: When exactly? Are you asking me that now?
MR P[...]: They say a woman always knows.
MS W[...]: I am telling you when you came to - sorry, I must speak to you?
COURT: Yes, speak to the Court.
MS W[...]: No, when he came to me in Glenhaven that is time I fell pregnant.
COURT: And you can ...[intervenes]
MS W[...]: Because I did not have anybody else, so. Then I was on Triphasil
and antibiotics cancelled that.
MR P[...]: Your Worship, I am talking about the timeline Your Worship.
MS W[...]: But it is - really I do not know which month, which day. I cannot
remember.
COURT: We will just quickly look back.
remember.
COURT: We will just quickly look back.
MS W[...]: Unless it was, but I do not know.
COURT: You said you saw Mr P[...] in February 2001. At the time you could
have been six to seven months pregnant.
MS W[...]: Yes, Your Worship.
COURT: Now why can you not work it out?
MS W[...]: Oh, must I work it out.
COURT: You have to work it out ja. That is what Mr P[...] wants you to do.
MS W[...]: Oh.
COURT: This is now, remember you are looking at the timeline. Right. So you
said seven months. He disappeared for seven months. Right?
MS W[...]: No, I did not ...[intervenes]
COURT: I told him I - then you told him I was pregnant. February you said it
was six to seven months pregnant.
MS W[...]: When I saw him ja.
COURT: Ja, so in February you were already six to seven months pregnant.
So I mean do a calculation if you can. Work that seven months from February,
because that is the timeline you are giving yourself now in terms of your
testimony.
MS W[...]: Oh, so if I am - no, I do not know if it was conceived there or at Old
Trafford. I do not know. But like I said it is 25 years ago. You must forgive me.
But I am not here to lie.
COURT: You said your child was born on the 23rd of May 2001.
MS W[...]: Yes, he was overdue. It was nearly 42 weeks.
COURT: 42 weeks.
MS W[...]: He was overdue. COURT: It is normally 40 weeks.
MS W[...]: Your Worship, I think Mr P[...] said I have frequented the place as
from July, August if you go back. So he might have been consu - what I am
saying. I am sorry. He might have been con ceived there at Old Trafford. I do
not know, you know because, but ja. I just know I told him and I am sure I
cannot even think if I told him at Glenhave or wherever. But I possibly saw
him twice at Glenhaven. Once to tell him and the next time, and I thin k I got
him - I got hold of his sister to get hold of him. I am speaking under correction.
Forgive me. Then he came. After that I only saw him again in February before
Z[...] was born, so ja. So you right if I frequented the place from July, August,
Z[...] was born, so ja. So you right if I frequented the place from July, August,
because we started having sex from not long after I got there ...
COURT: So I am just going to quickly go back to what the meneer 's question
was. So meneer said you came there from the 5th of - you came there from
the end of August 1999.
MS W[...]: You can exactly go back he did first say July, August. And how he
knows that, I am grateful, because he did mention before saying August he
said July, August and he was right.
[93] As we read this evidence, the respondent accepted that if she was seven
months pregnant in February 2001 and she was frequenting the Old Trafford sports
bar in July and August 1999, it is possible that Z[...] was conceived there. That was
manifestly a concession brought about by a calculation error on the respondent's
part: If Z[...] was conceived in August 1999 he would have been born in about May
2000, not May 2001 (as he was).
[94] That evidence is thus not, in our view, particularly problematic to the
respondent's case. That she could not recall the precise chronology of events is
unsurprising. Her willingness to concede facts on the premise that she had the
timeline wrong is i n fact to her credit. And ultimately the question of whether Z[...]
was conceived at Old Trafford sports bar or at Glenhaven is neither here nor there.
The ultimate question was whether the appellant is Z[...]'s father. The respondent
testified that she did no t have sexual relations with anyone but the appellant at all
material times. She specifically stated that she did not have such relations with any
of the appellant's family members. The respondent was (unsurprisingly) unable to
dispute those allegations wh en he gave evidence. However, he made no challenge
to that proposition when cross-examining the respondent.
[95] The appellant's version was of considerable assistance in establishing a
chronology from which the versions of the parties could be considered.
[96] The appellant said that he opened the Old Trafford sports bar on 6 March
1999, and that before that and at that time he had been a karaoke host at various
1999, and that before that and at that time he had been a karaoke host at various
sports bars. He said that the respondent and a friend of hers had started frequenting
the Old Trafford sports bar around the end of July/August 1999, apparently pursuant
to being invited to do so by one " Danny", one of the appellant's staff. The appellant
believed that Danny had met the respondent and her friend at Planet Bar. The
respondent ment ioned that she had danced with Danny at Planet Bar, and the
versions accord from that perspective.
[97] The appellant testified that the respondent befriended a lot of people at the
Old Trafford sports bar and " ... became like almost a part of the househ old furniture
there, to put it that way". He also said that the respondent came to the bar alone and
would sit, staring at him " ... with dead still eyes":
"She was looking at me at the time and I confronted her one day and I asked
her, "Is there something wrong" and she said to me, "No. " Long after that my
barman at the time, my late friend, came to me and he said to me "Did you
see how S[...] can sit there and just look at you?" So I said, "Man, I saw, so I
do not know if there is something wrong," but nevertheless it stayed there. We
just left it there because there was other important things, Your Worship."
[98] The appellant also explained that the respondent had met his then fiance,
who was between six and a half to seven months pregnant at the time. The appellant
said that his child was born in December 1999, which would suggest that the
meeting was relatively soon after the respondent started frequenting the Old Trafford
sports bar. The appellant said that in about December 1999 the respondent had
given his fiance a book about pregnancy or baby names, and had also asked the
appellant to do a function at the Delft library where she worked at the time:
"And she brought my fiancée a book about pregnancies uhm, and I am not
sure if there was also a book with names but nevertheless it was books and
the was one concern that my fiancée had. She said, "Listen, you have got to
take this book back because it is a library book and I did not, you know, sign it
out," type of thing. I eventually gave the book back after a week or so and that
was closer to early December is when Ms W[...] asked me to do the function
at the Delft Library."
at the Delft Library."
[99] The appellant also testified about an incident he claimed occurred in early
January 2000, a few weeks after his child was born. He said he and his fiancé took
their baby to the Old Trafford sports bar for the staff to see, that the respondent was
present on that day, and that she said to him " Oh, you must give me a Purity jar with
some sperm in. I think the baby is just s o cute". He also said that in about March
2000 the appellant stole a photograph of his child that he kept behind the bar, and
that in about May 2000 she was banned from the Old Trafford sports bar:
MR P[...]: We did the function in '99 and then time just we nt by and it was
close to March the following year. I had a photo of my fiancée and I had a
photo of my child at the time behind the bar, my son, and there was one
Thursday and Friday that I was not well and I did not go to the institution. Me
and my fiancée got there on Saturday morning - a Saturday morning. I was
not actually on my way to the place. We had another appointment and she
then noticed that the photo of our son was no longer behind the bar. [indistinct]
the barman, Clinton, he said the only person that could have took that was the
applicant because she was here. I was not personally there, Your Worship, so
that is why I had to ask him about the incident.
COURT: And this was behind the bar?
MR P[...]: Behind the bar. Next to the till behind the b ar there was a mirror. It
was against the mirror.
COURT: Go ahead.
MR P[...]: After investigating and asking questions she first denied that she
took the photo.
COURT: When did this discussion take place with the applicant?
MR P[...]: That was - that was proba bly within the following week, Your
Worship.
COURT: In the same week?
MR P[...]: In that same week.
COURT: So you confronted her?
MR P[...]: I did, Your Worship.
COURT- Go ahead, meneer.
MR P[...]: And at first she denied that she took the photo and a few days after
that she - because we were very worried and I was furious at the time
because with our discussions prior to - prior to this incident and Mr W[...]
telling us her life stories an d so on, there was this thing about sangomas
coming out and how she could not stand certain things and what she went
through with her ex -husband etcetera, and that -I did not say anything at the
time, Your Worship, but that was - it was a pinnacle point bec ause it was a
worrying factor for me later that week she just brought the picture back. She
slipped it so out of her small bag, put it on the counter and pushed it towards
me, so I said to her, "Now, why did you deny taking the picture?" and her
words to m e was, "Oh, I saw the baby was so cute, " and I just want to go
back to the very - if I can Your Worship, just prior to with the same words that
she gave prior to that. In December when my son was born we took the baby
- he was a couple of weeks old - we took him to the sports bar during the day
on a Saturday to show the staff because everybody wanted to see the baby
and we had female securities and everybody there as well, and everybody
was on the corner of the bar. There was a freezer there as well and my wife
was standing there with the baby and as I came out - whether I went to the
kitchen or did something, I do not know - I came out behind the bar, she said
to me, "Oh, you must give me a Purity jar with some sperm in. I think the baby
is just so cute. " So those two words reminisced with me at the time she told
me she took the picture because the baby was just so cute. Anyway, the
incident did not go off well and not long after that, Your Worship - that must
have been mid -May, beginning May when I disc ussed this issue with my
fiancée at the time and we decided ... [intervenes]
COURT: Is this now May 2020 [sic}
MR P[...]: Everything happened in 1999, Your Worship.
COURT: Okay ...[intervenes]
MR P[...]: Sorry, Your Worship, that was May 2020 [sic].
COURT: This is mos now after your baby with your wife was born?
MR P[...]: Yes, after my son was born, 2020 [sic].
COURT: Right. Go ahead.
MR P[...]: And then she was banned, Your Worship. Towards the end of
May ...[intervenes]
MR P[...]: And then she was banned, Your Worship. Towards the end of
May ...[intervenes]
COURT: Just explain that, meneeer. What did you say? She was banned?
MR P[...]: She was banned from the premises, not to come there due to that
incident of the ... [intervenes}
COURT· And who banned her?
MR P[...]: I did, Your Worship."
[100] The appellant went on to explain that he closed the Old T rafford sports bar on
11 July 2000, a few months after the respondent was banned from going there. The
appellant said that he had given his bartender, Clinton, an opportunity to try and run
the enterprise for about a month, but by about the end of June Cli nton had said he
was no longer interested in doing so. The appellant said that he then closed the
business on 11 July, after returning from a trip to Namibia:
"MR P[...]: We had other competitors but besides that we had other issues
with elements around u s looking for protection money and I ventured into a
possibility of a courier business which I tested out throughout May and June.
Now, every year June I would go to Namibia - annual. That was out annual
trip to Namibia and we prepared that time going to N amibia to show my wife's
granny, grandparents the baby and I said to my friend, Clinton, I said to him,
"Clinton, you know this business. I do not think I am going to carry on any
longer.
COURT: And you are talking now about the sports bar?
MR P[...]: I am t alking about the business, the sports bar, Your Worship. His
words to me was, "Listen, give me a chance," because he was also going to
be without an income. He said to me, "Give me a chance and see if I cannot
maintain the place or build the place or do something better. "
COURT: And what was his function at the bar?
MR P[...]: He was the barman but also the general manager. He would take
over - if I am not there he makes the decisions, he would do the cash, he
would do... [intervenes]
COURT: But he was not a co-owner or anything like that?
MR P[...]: He was not a co-owner.
COURT: Okay, and then after that?
MR P[...]: Okay, for that entire month which I believed he ran the place - I
went to Namibia at the end of June and I specifically remember phoning him
from Namibia because the rent was due and I was still liable for the rent and I
from Namibia because the rent was due and I was still liable for the rent and I
did not know what was happening there at the time and he said to me, "Look,
it has been a few days that we were not operating. I do not think I am going to
keep the place. " I came ba ck on - and the reason I know the dates, Your
Worship, I have got my passport to show it. I came back on the 10 th . I
crossed the border on 10 July which was a Monday, on a day we were closed.
I then went and I got the keys from Clinton ... [the appellant t hen goes on the
explain how we went about closing up the Old Trafford sports bar].
COURT: Okay, so from what you are saying then, from 10 July 2020 [sic] the
place is closed?
MR P[...]: 11 July.
COURT: You said ...[intervenes]
MR P[...]: Yes, the 10 th it was closed as a normal closing day but the 1 1th I
closed the place."
[101] The appellant said that he did not see the respondent again, and had in fact
not seen her since she had been banned towards the end of May 2000. This is of
course where the versions conflict: Construed in the context of the evidence as a
whole, the respondent's ver sion was that she and the appellant were intimate in
Glenhaven in early August 2000, which is when she considers Z[...] was conceived.
The appellant averred that he first heard of the respondent's claim that he was Z[...]'s
father in about September 2001, after the respondent contacted his wife and told her
that Z[...] (then about four months old) was the appellant's child.
[102] We consider that the analysis above reveals that despite the apparently poor
quality of the respondent's evidence, once adjusted to ta ke account of errors in
chronology much of her testimony fits with the appellant's version. The respondent's
version was that the appellant and the respondent knew each other by about
September 2009 and that the respondent spent a lot of time at the Old Tr afford
sports bar. He says the respondent got to know his fiancé and that he attended a
function with her with the hope of securing a business opportunity. He says she used
to stare at him, made an inappropriate comment about him giving her some sperm
because he had a cute baby, and stealing a picture of his child. His evidence also
because he had a cute baby, and stealing a picture of his child. His evidence also
gives some credence to the respondent's version that she was living in Glenhaven in
about August 2000, the time she approximates Z[...] was conceived.
[103] The key difference between the versions is that the appellant disputes that he
and the respondent had a romantic relationship. In particular, the appellant disputes
that on at least several occasions during a period towards the end of 1999 he and
the respondent had sexual intercourse on a mezzanine floor at the Old Trafford sport
bar after closing time, or that they did so at the respondent's home in Glenhaven in
about August 2000 and February 2001.
Conclusions
[104] Without more, and bearing in mind the onus and the cautio us approach
mandated in Mayer (supra), we consider that the respondent's evidence alone did
not establish the appellant's paternity of Z[...] on a balance of probabilities.
[105] Similarly, and without any evidence supporting them, the mere admission of
the paternity tests and Dr York's email of February 2018 did not establish the
appellant's paternity on a balance of probabilities.
[106] However, we consider that the probabilities shift in the respondent's favour
once those two sources of evidence are consi dered as a composite whole. At the
risk of repetition, we consider that the respondent's version becomes the dominant
one on the probabilities when it is considered with the following:
[107] On the face of it, the court -ordained paternity tests all indicate a material level
of genetic similarity between the appellant and the respondent. That fact lends
credibility to the respondent's version that Z[...] was conceived pursuant to a sexual
encounter between the appellant and the respondent at her home in Gl enhaven in
about August 2000.
[108] The first test excluded paternity because there were two or more loci that did
not match. While that is in line with the SANAS guideline, that guideline also makes it
clear that it requires a very high degree of certain ty before confirming paternity. The
court is concerned with proof on a balance of probabilities, not scientific proof. The
court is concerned with proof on a balance of probabilities, not scientific proof. The
conclusion in the first test thus does not serve to exclude a finding of paternity on the
probabilities.
[109] All three tests have substantially the same results for the testing of the loci
common to all of them. That suggests reliability of the application of the three tests.
[110] The second and third tests indicate a high probability that the appellant i s
Z[...]'s father. Although the relevant calculation has not been explained in evidence,
DNA tests are relatively well-known scientific tools and have some prima facie value.
The only material evidence the appellant put up to discredit that prima facie evidence
is the SANAS guidelines and an email from Dr York (which he now says the Court
ought to have disregarded). We consider that if regard is had to Dr York's email, it
only serve to reinforce the conclusion that, on the probabilities, the appellant is
Z[...]'s biological father.
[111] We accordingly find that even if the maintenance court erred in assessing the
basis on which the paternity tests were admissible and the weight to be attributed to
them, it nevertheless arrived at the correct finding, namely, that the appellant's
paternity of Z[...] was established on a balance of probabilities.
[112] In coming to this conclusion we have considered all the grounds of appeal
raised by the appellant. We do not consider that any of them serve to undermine the
analysis above. Insofar as the appellant has criticised the maintenance court for not
safeguarding his interests as an unrepresented litigant, if he wished to raise those
criticisms he ought to have done so by way of review proceedings. We hasten to add
that o ur consideration of the record suggests that the proceedings were properly
conducted by the maintenance court, which remained focused on seeking to inquire
into the core issues it was seized with.
[113] There should be no order as to costs in respect of t he appeal as the
respondent was represented pro bono up until the notice to abide, and did not
participate in the proceedings thereafter.
[114] In the circumstances we make the following order:
[114] In the circumstances we make the following order:
1. The appellant's late filing of his notice of appeal is condoned.
2. The appeal is dismissed.
3. There is no order as to costs.
MORRISSEY AJ
Acting Judge of the High Court
[115] I concur.
LE GRANGE J
Judge of the High Court
Appearances:
Appellant appeared in person.
No appearance for respondent.