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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 1790/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 17 NOVEMBER 2025
SIGNATURE:
In the matter between:
H[...] C[...] C[...] APPLICANT
And
N[...] E[...] M[...] FIRST RESPONDENT
TEBOGO ASHLY MYENI SECOND RESPONDENT
TIYANI THEODORE CHAUKE THIRD RESPONDENT
EMELDAH NOMHLE NDLOVU FOURTH RESPONDENT
JUDGMENT
BURNETT, AJ
INTRODUCTION
[1] This is an urgent application in terms of which the Applicant seeks the
following relief: -
(a) That the non -compliance with the forms, service and time periods
prescribed in the Uniform Rules of Court and/or directives if any be condoned,
and that this matter be heard as urgent in terms of Rule 6 (12) of the Uniform
Rules of Court.
(b) That the order granted by the Honourable Mushwana AJ on 17 October
2025 be declared operational and executable pending the finalisation of the
leave to appeal filed by the First Respondent and or such further appeal
processed which the First Respondent may in the future engage into arising
from the aforesaid order of Honourable Mushwana AJ.
(c) That the provisions of section 18 (3) of the Superior Courts Act 10 of
2013 be invoked and applied, as the appeal noted by the First Respondent is
against an interlocutory and non -appealable order, and or that exceptional
circumstances exist warranting the operation of the said order granted on 17
October 2025 by the Honourable Mushwana AJ.
(d) That the order of the Honourable Justice Tshidada J dated 19
December 2023 for the spousal maintenance and child maintenance of the
Respondent and her minor child namely M[...] J[...] M[...] be suspended
pending: -
(i) The full compliance by the First Respondent with the orders of
Mushwana AJ dated 17 October 2025, and/or alternatively.
(ii) The determination of the paternity of the minor child, M[...] J[...]
M[...]; and
(iii) The determination of the marital status of t he Applicant and the
First Respondent.
(e) That it be declared that there is no prejudice whatsoever that will be
suffered by the First Respondent should the order of Mushwana AJ dated 17
October 2025 be allowed to operate and be executed pending the final isation
of the appeal proceedings or processes.
(f) That it be declared further that, should the order of Mushwana AJ not
be operational, the Applicant (First Respondent in the leave to appeal) will
suffer serious prejudice and irreparable harm, including the frustration of the
court’s directive for determination of paternity and marital status, and the
continued effect of an order granted but the Honourable Tshidada J, 19
December 2023 obtained through fraudulent misrepresentations and or
direction and or concealment of the material facts by the First Respondent.
(g) That the operation of the order granted by the Honourable Tshidada J
dated 19 December 2023 be suspended pending compliance with the orders
of the Honourable Mushwana AJ dated 17 December 2025 for the
determination of the marital status of the Applicant and the First Respondent
and paternity of the minor child, namely M[...] J[...] M[...].
(i) That the costs of this application be payable by any opposing First
Respondent on a party and party scale.
(ii) That the Applicant be granted such further and/or alternative relief as
this Honourable Court may deem just and equitable.
[2] The order that was handed down by his Honourable Justice Mushwana AJ on
17 October 2025, and that forms the subject of this urgent application, was handed
down through the case management process. The order held that: -
(a) That the Applicant/Plaintiff and the First Respondent together with the
minor child herein concerned submit themselves for a paternity test (“DNA
test”) to be conducted by a Laboratory registered with the South African
National Accreditation System (SANAS).
(b) That the First Respondent/Defendant is ordered to immediately secure
an appointment with a laboratory so stated above and immediately
communicate the date, place and time where such test shall be conducted to
the application through her legal representative of record.
(c) That the First Respondent/Defendant shall be responsible and liable for
the payments of the costs occasioned by the conducting of such tests and all
reasonable costs incurred for the travelling of the Applicant and the minor
child in attendance of such testing to be conducted.
child in attendance of such testing to be conducted.
(d) That the First Respondent/Defendant shall, once the appointment has
been so secured and all payment h as been made, file this court with proof
thereof.
(e) That the results of such tests shall be sent to the parties directly, that
means the parties shall appoint their own addresses for accepting the test
results for the purposes of confidentiality and make them available to this
court by causing same to be filed with the Registrar of the Court.
(f) Both the Applicant/Plaintiff and the First Respondent/Defendant are
ordered to file with this court, proofs of their marital status at the time of
entering the customary marriage, alternatively an affidavit stating their marital
status quo at the time of entering such a marriage.
(g) That this matter is postponed on the 20th day of November 2025 for the
parties to comply with the orders at paragraph 1, 2, 3, 4 and 6 supra and for
the further hearing of the interlocutory applications should same become
necessary.
(h) Costs of the interlocutory applications are reserved until the finalisation
of the applications.
[3] The application is opposed by the First Responden t who seeks a dismissal of
the application together with a cost order on an attorney and client scale in
accordance with scale C.
[4] The Second, Third and Fourth Respondents did not oppose the urgent
application, however no relief was sought against them . Accordingly, their roles in
this matter are not addressed herein.
BACKGROUND FACTS
[5] The following facts are pertinent to understanding the litigation history
between the parties: -
[5.1] The Applicant and the First Respondent were involved in a sexual
relationship. The First Respondent contends that she and the Applicant are
married in accordance with customary law and that their marriage complies
with section 3 (1) of the Customary Marriage Act, Act 120 of 1998. The
Applicant disputes that the relationship between him and the First Respondent
constitutes a valid and binding customary marriage. Their different versions as
to the nature of the relationship will be dealt with in due course by the divorce
trial court.
[5.2] A child was born during the sexual relationship between the Applicant
and the First Respondent, namely M[...] J[...] M[...], a girl born on 17 August
2023. Paternity of the child is also in dispute. The First Respondent contends
that the Applicant is the biological father of the child, however the Applicant
disputes this and alleges that it is impossible for him to have fathered the child.
NON-COMPLIANCE WITH PRACTICE DIRECTIVE
[6] There was non -compliance with the practice directive to some extent, and
more in particular, the court file had not been indexed and paginated. Despite the
court file not having been indexed an d paginated, the court read all the papers filed
by the parties.
[7] The matter is accepted as urgent and accordingly the court condoned non -
compliance with the Practice Directive. Whilst the court is certainly displeased that
the Applicant did not index and paginate the court file, it was in the interests of the
minor child to hear the matter.
[8] The reasons that the matter is accepted as urgent will be addressed later in
this judgment.
LITIGATION HISTORY
[9] The papers placed before this court were somewhat chaotic. The Applicant’s
papers contain a very poor chronological explanation of what has transpired in the
legal process thus far. There has been an inordinate amount of litigation between the
parties, with various applications being heard across various divisions. The court
finds it perplexing that the Applicant did not take sufficient care to provide this
Honourable Court with a detailed chronological explanation of what has transpired
through the protracted legal history. This court had to spen d a great deal of time
navigating through the papers to properly understand what has happened from
beginning to end. Judicial officers should not have to fish for relevant information;
legal representatives have a duty to be diligent in the drafting of the ir papers to
ensure that they make sense and are easy to read.
[10] A copy of the court order granted by his Honourable Mushwana AJ on 17
October 2025, the very court order to which this application relates, was not even
attached to the Founding Affidavit and the Applicant was granted leave to file a
Supplementary Affidavit affixing the relevant court order thereto.
[11] It was not clear from the papers as to whether a divorce summons was issued,
and if so, what the status of the act ion was. The Applicant has not made any
reference to a divorce action. The First Respondent refers to a divorce in her
Answering Affidavit wherein she stated that: -
“…which aforesaid conduct renders our customary marriage putative and
resultant in me la unching the Rule 43 application proceedings pending
divorce or dissolution of the aforegoing putative marriage in the Limpopo
Division of the High Court Thohoyandou.”
[12] The court had to clarify with the legal representatives what the position with
the divorce was. According to the legal representatives, the divorce action is pending
in the Thohoyandou High Court, and the matter is at discovery stage with notices in
terms of Rule 35 having been served and filed. The action is not trial ready.
[13] During the course of 2023, the First Respondent issued an application in
terms of Rule 43 in the Thohoyandou High Court, which matter was ventilated in that
court and an order granted by the Honourable Justice Tshidada on 19 December
2023 granted inter alia, that: -
“(a) The First Respondent is ordered to contribute twelve thousand rand
(R 12 000.00) towards the Applicant for spousal maintenance.
(b) The First Respondent is further ordered to contribute an amount of nine
thousand rand (R9 000.00) towards the minor child in casu for maintenance or
upbringing pendente lite.
(c) The First Respondent is ordered to reimburse the Applicant on any
medical expenses incurred by the Applicant on behalf of the minor child
herein upon the Applicant providing him with proof of the medical expenses
incurred in respect of the minor child.
(d) The First Respondent is ordered to contribute an amount of one
hundred and fifty thousand rand (R150 000.00) towards the Applicant’s legal
costs in the impending divorce proceedings between the Applicant and the
First Respondent,
(e) The First Respondent is therefore ordered to pay both the spousal
maintenance and the minor child’s maintenance amounts form the 1 st day of
January 2024 and all the consecutive months thereafter pendete lite.
(f) The First Respondent is therefore ordered to pay the contribution
towards legal costs of the Applicant in the amount of one hundred and fifty -
thousand rands (R150 000.00) in four equal instalments which first instalment
shall commence on the last day of January 2024 and thereafter on the
succeeding day of each last day of the month.
(g) The First Respondent is ordered to pay the costs of this application,
including the reserved costs on the 28th day of November 2023.”
[14] The Rule 43 order relate s to spousal maintenance for the marriage that has
been disputed and child maintenance for the child whose paternity is disputed.
[15] Some two to three months after the Rule 43 application order was granted,
the Applicant launched an application in the Malamulele Children’s Court for an order
for confirmation of paternity. The application for paternity was never finalised. From a
reading of the papers, it seems that the First Respondent was dissatisfied with a
directive at the pre -hearing process and not ed an appeal against it. The matter has
not moved forward, and the status of the appeal is unknown.
[16] In between all of this, a male third party by the name of Tebogo Ashly Myeni,
launched an application in the Malamulele Children’s Court to obtain vis itation to the
launched an application in the Malamulele Children’s Court to obtain vis itation to the
minor child, which he contends is his child. From a reading of the papers, it seems
that, as with the Applicant’s application for confirmation of paternity, the First
Respondent was dissatisfied with a directive at the pre -hearing process an d noted
an appeal against it. The matter has not moved forward, and the status of the appeal
is unknown.
[17] The Applicant complied with the Rule 43 order for six months and then
stopped. As a result of this, the First Respondent launched a Contempt of C ourt
application against the Applicant for his failure to adhere to the Rule 43 order. The
Contempt of Court Application was heard by the Honourable Justice Tshidada on 13
August 2024, who found the Applicant to be in contempt of court. A warrant of arrest
was authorized, however suspended pending the full payment of the maintenance
arrears within a specified period.
[18] Two days later, on 15 August 2024 , Honourable Justice Tshidada varied his
order in terms of Rule 42 (1) (b) in respect of the number of days that the Applicant
had to comply with the order of 13 August 2024 for the warrant to remain suspended.
[19] The Applicant launched an application for leave to appeal against the orders
handed down on 13 and 15 August 2024 , which application was dism issed on 4
September 2024. The Applicant then filed a petition with the Supreme Court of
Appeal against the 13 August 2024 order by his Honourable Justice Tshidada. The
petition was dismissed.
[20] The First Respondent launched an urgent application again st the Applicant
whereby she sought to uplift the suspension of the warrant of arrest for the
Applicant’s continued failure to comply with the court order and on 6 September
2024 his Honourable Justice Matumba AJ uplifted the suspension.
[21] The Applicant then launched an application for leave to appeal the decision of
6 September 2024 order by the Honourable Justice Matumba AJ, together with a
request for reasons. The Honourable Justice Matumba then varied the order and
replaced it with a new order dismissing the First Respondent’s urgent application.
[22] The First Respondent then launched an application for leave to appeal
against dismissal of her application to uplift the suspension of the warrant. The
against dismissal of her application to uplift the suspension of the warrant. The
application for leave to appeal was d ismissed on 11 December 2024 . The First
Respondent then filed a petition to the Supreme Court of Appeal and was granted
leave to appeal to the Full Court of the Limpopo Local Division of the High Court.
The appeal process to the Full Court is underway, however, has not been finalised.
[23] Proceedings were instituted by the First Respondent in terms of Section 31 of
the Maintenance Act, Act 99 of 1998. On 15 January 2025 , the Applicant was
convicted and sentenced to three months’ imprisonment or a fine of R 50 000.00
which sentence was suspended.
[24] The Applicant commenced maintenance payments however stopped again
after a few months. This led to a second maintenance complaint in terms of Section
31 of the Maintenance Act, Act 99 of 1998. Save for the fact that a warrant of arrest
has been authorized against the Applicant for his failure to attend court, the exact
status of the proceedings is unknown.
[25] The Applicant launched an urgent application in this Division of the High Court
for the setting a side of the warrant of arrest issued in the Section 31 proceedings.
The urgent application was heard by the Honourable Justice Besler AJ and was
struck from the roll for a lack of urgency.
[26] On 26 June 2025 the Honourable Justice Du Plessis AJ granted an interdict
against the sale of the Applicant’s assets for his failure to comply with the Rule 43
order. The First Respondent has noted an appeal against the order; however, it is
unclear what the status of that appeal is.
[27] On 14 July 2025 the Honourable Justice Khan AJ from the Gauteng Division
also granted an interdict against the sale of the Applicant’s assets. The First
Respondent has noted an appeal against the order; however, it is unclear what the
status of that appeal is.
[28] There is also a n application in terms of Rule 43 (6) pending, which was
launched by the Applicant. All that can be gathered from the papers is that sometime
after the Rule 43 (6) application was launched, the First Respondent sought an order
after the Rule 43 (6) application was launched, the First Respondent sought an order
interdicting the High Court f rom hearing it, which application was dismissed. The
First Respondent went as far as petitioning the Constitutional Court with an
application for leave to appeal, of which application was dismissed.
[29] Following this, the Honourable Judge President of this Division referred the
matter to case management.
[30] In the midst of this, four interlocutory applications were launched. No detail is
provided in the papers as to what these interlocutory applications were about. It
appears that these applications were to be dealt with during a case management
hearing. His Honourable Justice Mushwana AJ convened a case management
meeting and made the 17 October 2025 order (the order to which this application
relates). The interlocutory applications were not heard du ring this case management
hearing, and no order was made in regard thereto. His Honourable Justice
Mushwana AJ directed the parties, inter alia, to submit the minor child for a paternity
test (“DNA Test”). The First Respondent has filed an application for leave to appeal
against this order, and the Applicant seeks to enforce the order pending the outcome
of the appeal.
SUBMISSIONS BY THE APPLICANT
[31] The Applicant submits that he underwent a vasectomy in 2010 and that it was
impossible for him to have f athered a child thereafter. As the child to which this
application relates was born in 2023, the child cannot be his. The Applicant further
submits that he suffers from a medical condition called Azoospermia, which means
that he has complete absence of spe rm. In support hereof the Applicant attaches
medical evidence to his papers.
[32] The Applicant believes that the First Respondent is purposefully attempting to
block the DNA because she knows that child is not his biological child. He suggests
that this application is merely another attempt to frustrate the discovery of the truth.
The Applicant thinks that the First Respondent is doing this so that she can extract
an unlawful financial benefit from him in the form of maintenance.
[33] The Applicant states that he has spent approximately nine hundred thousand
rand (R 900 000.00) on maintenance and legal fees flowing from the Rule 43 order.
He submits that the maintenance that he has paid so far has been because of
fraudulent misrepresentations made by the First Respondent in the initial Rule 43
application. The continuous maintenance payments and the enforcement thereof has
caused him financial hardship.
[34] The Applicant says that he has suffered humiliation from the various
encounters with the South African Police Services and the criminal justice system.
[35] The Applicant relies on the following authorities in support of his arguments:
[35.1] University of the Free State v AfriForum 1 wherein it held that the
purpose of an application in terms of section 18 (3) was not to re -ligate the
issues that gave rise to the order in question. The point of an application in
terms of section 18 (3) is to determine whe ther the requirements of
exceptional circumstances, irreparable harm and the balance of convenience
have been satisfied to justify the order remaining operational pending appeal.
[35.2] Centre for Child Law v NN 2 wherein it found that children have a
constitutional right to know their own origins.
[35.3] LB v YD 3 wherein the court held that it may draw a negative inference
against a parent refusing to submit a child to a paternity test.
[35.4] M v M 4 wherein the court held that the best interests of a child are
served by the truth being established when paternity is uncertain.
SUBMISSIONS BY THE FIRST RESPONDENT
[36] The First Respondent contends that the minor child is the biological son of the
Applicant and that the paternity test is unnecessary for the following reasons: -
1 2018 (3) SA 428 (SCA).
2 2019 (2) SA 442 (CC).
3 2009 (5) SA 463 (T).
4 2012 (2) SA 526 (GSJ).
[36.1] The minor child was born “ stante matrimonio ” and the common law
presumption of “Pater est Quem nuptiae demonstrant” finds reference.
[36.2] The Applicant has acknowledged that the minor child is his own child
and thus on a balance of probabilities the child is his biological child.
[37] The court should not entertain the Applicant because he is not a litigant with
clean hands. The Applicant has violated the Rule 43 order continuously over the last
two years and accordingly has no respect for the court and the orders that it makes.
The First Respondent refers to the Applicant as a fugitive from justice because he
has evaded the authorities, court appearanc es in the criminal court and warrants of
arrest issued against him.
[38] The First Respondent relied on the judgment of YM v LB 5, which found that
scientific tests should not be ordered where paternity has been shown on a balance
of probabilities.
[39] The First Respondent further relied upon the following authorities: -
[39.1] Deputy Sheriff, Harare v Mahlaza & Anor6, wherein it was held that: -
“People are not allowed to come to court seeking the court’s assistance if they
are guilty of probity of dishonesty in respect of the circumstances which case
them to seek relief from the court.”
[39.2] Underhay v Underhay7 wherein it was held that: -
“It is a fundamental to court procedures in this country and all civilized
countries that standards of truthfulness and honesty be observed by parties
who seek relief.”
[39.3] Botes v Goslin8 wherein it held that: -
“The basic morality in denying a fugitive from justice the assistance of the very
system he refuses to submit to is elementary, a man cannot say that he is
prepared to abide by the rules of society, and seek society’s assistance in
5 (469/09) [2010] ZASCA.
6 1997 (2) ZLR 425 (H).
7 1977 (A) SA 23 (W).
8 1987 (2) SA 716 (C).
enforcing them, only when they favour him and when he chooses, but not
when he decides that it does not suit him to do so.”
[39.4] Mulligan v Mulligan9 wherein it held that: -
“In the passage it appears that a fugitive may be accepted as being one who
is willfully avoiding the execution of the processes by the court of the l and, or
as one who is avoiding the processes of the law through flight out of country
or is hiding within the jurisdiction of the court.”
[39.5] The United States of American decision of Togan v Casaus 10 wherein
it held that: -
“Such flagrant disobedience and contempt effectually bar him from receiving
the assistance of the appellate tribunal. A party to the action cannot with right
or reason, ask the aid or assistance of a court in hearing of the demands,
while he stand, in attitude of contempt of legal orders and process of the
courts of the State.”
LEGAL QUESTIONS
[40] This is an application in terms of Section 18 (3) of the Superior Courts Act 10
of 2013 and accordingly the legal questions to be answered will flow therefrom.
[41] Section 18 (1), (2) and (3) read as follows: -
“(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
that is an interlocutory order not having the effect of a final judgment, which is
the subject of an application for leave to appeal or of an appeal, is not
suspended pending the decision of the application or appeal.
9 1925 WLD 165.
10 American Law Reports 29 ALR 2d page 1423.
(3) A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if the
court does not so order and that the other party will not suffer irreparable
harm if the court so orders.”
[42] Having regard to the above, once an application for leave to appeal is
launched against an order in a Superior Court, the operation and execution of that
order is automatically suspended unless, the order is interlocutory in nature and
does not have the effect of being final. If the order is not interlocutory or final in
nature, a court may, on application, declare the order operational and executable if: -
[42.1] Exceptional circumstances exist for such declaration.
[42.2] The Applicant will suffer irreparable harm if it is not so declared.
[42.3] The Respondent will not suffer irreparable harm.
[43] If the court order is interlocutory and not final in nature, an application for
leave to appeal will not suspend the operation of the order, however a party may
bring an application in terms of Section 18 (2) to suspend the operation and
execution of that order. In this case, the First Respondent has not brought a
counterapplication in terms of Section 18 (2).
[44] Having regard to the above, the first question that needs to be ascertained is
whether the order handed down by Honourable Justice Mushwana AJ is interlocutory
and does not have the effect of being final in nature. If order is interlocutory and not
final, the application must be granted without further enquiry. If the application is a
final order (and not interlocutory in nature), then the following three further questions
must be answered: -
[44.1] Are there exceptional circumstances to deem the order operational
pending the appeal?
[44.2] Will the Applicant suffer irreparable harm if the order is not declared
operational?
[44.3] Will the First Respondent suffer irreparable harm if the order is
declared operational?
[45] This is an urgent application and accordingly it is no t possible to deal with all
the relevant issues in a lengthy fashion.
THE LAW
International Law
[45] Article 7 (1) of the Convention on the Rights of the Child states that: -
“The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and as far as possible,
the right to know and be cared for by his or her parents.”
[46] Article 8 (1) of the Convention on the Rights of the Child states that: -
“State Parties undertake to respect the right of the child to preserve his or her
identity, including nationality, name and family relations as recognized by law
without unlawful interference.”
[47] Section 19 (1) of the African Charter on the Rights and Welfare of the Child
states that: -
“No child shall be separated from his parents against his will, except when a
judicial authority determines in accordance with the appropriate law, that such
separation is in the best interests of the child.”
[48] Article 19 (2) of the African Charter on the Rights of the Child states that: -
“Every child who is separated from one or both of his parents shall have the
right to maintain personal relations and direct contact wi th both parents on a
regular basis.”
The Constitution
[49] Section 28 (1) (b) of the Constitution states that: -
“Every child has the right to family care or parental care , or to appropriate
alternative care when removed from the family environment.”
[50] Section 28 (2) of the Constitution of the Republic of South Africa states that: -
“A child’ s best interests are of paramount importance in every matter
concerning the child.”
[51] Section 34 of the Constitution of the Republic of South Africa states that: -
“Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.”
[52] Section 36 of the Constitution of the Republic of South Africa states that: -
“(1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including — (a) the
nature of the right; (b) the importance of the purpose of the limitation; (c) the
nature and extent of the limitation; (d) the relation between the limitation and
its purpose; and (e) less restrictive means to achieve the purpose. (2) Except
as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”
[53] Section 39 (1) (b) states that: -
“When interpreting the Bill of Rights, a court, tribunal or forum – (b) must
consider international law.”
The Children’s Act 38 of 2005
[54] Section 6 (4) of the Children’s Act states that: -
“In any matter concerning a child, a delay in any action or decision to be taken
must be avoided as far as possible.”
[55] Section 7 (1) (n) of the Children’s Act states that: -
“Whenever a provision of this act requires the best interests of the child
standard to be applied, the following factors must be taken into consideration
where relevant, namely - which action or decision would avoid or mi nimise
further legal or administrative proceedings in relation to the child.”
[56] Section 9 of the Children’s Act states that: -
“In all matters concerning care, protection and well -being of a child the
standard that the best interest is of paramount importance.”
[57] Section 36 of the Children’s Act states that: -
“If in any legal proceedings in which it is necessary to prove that any particular
person is the father of a child born out of wedlock it is proved that the person
had sexual intercourse with the mother of the child at any time that the child
could have been conceived, in the absence of evidence to the contrary which
raises a reasonable doubt, presumed to be the biological father of the child.”
[58] Section 37 of the Children’s Act states that: -
“If a party to any legal proceedings in which the paternity of a child has been
placed in issue has refused to submit himself or herself, or the child, to the
taking of a blood sample in order to carry out scientific tests relating to the
paternity of the child, the court must warn the party of the effect which such
refusal might have on the credibility of that party.”
Case Law
[59] The Constitutional Court stated in S v S and Another11 that: -
“Any injustices, real or perceived, can be ameliorated in a number of ways.
Rule 43 was not designed to resolve issues between divorce litigants for an
extended period, but rather as an interim measure until all issues are properly
ventilated at trial. The fact that rule 43 orders may be enforceable for longer
periods than was initially anticipated, is the fault of the way divorces are
handled, often by litigants and practitioners, rathe r than a deficiency in the
rule itself…. Rule 43(6) provides litigants with an avenue to approach a court
for a variation of its decision, on the same procedure, when there is “material
change occurring in the circumstances of either party or a child, or t he
contribution towards costs proving inadequate”.
ANALYSIS
[60] The First Respondent conceded during argument that the order that was
granted by the Honourable Justice Mushwana AJ was interlocutory in nature,
however contended that despite this, the eff ect thereof is final. I cannot agree that
the order directing the First Respondent to submit the minor child for a DNA test is
final, because it does not bring an end to the main action between the parties. The
same applies to the part of the order that di rects the parties to submit proof of their
marital status at the time of entering the alleged customary marriage. The effect of
the order is like the effect of an application to compel in terms of Rule 35 of the
Uniform Rules of Court; the fulfilment of su ch an order places the parties in a
position to properly prepare for trial. The litigation will continue after the interlocutory
11 [2019] ZACC 22.
order is complied with. The court order emanating from the divorce order will be a
final order.
[61] The above should bring the application before the court to an end, with no
further discussion required. The First Respondent has not brought a
counterapplication in terms of Section 18 (2) of the Superior Courts Act before this
court; however, it seems that she had intended to do so through her defence. The
First Respondent suggests that the court can suspend the operation and execution
of the order of 17 October 2025, if exceptional circumstances exist. The First
Respondent contends that because the Applican t is a fugitive from justice, the court
should not come to his aid. It is suggested that the Applicant cannot seek
enforcement of the court order, because he has persistently obstructed the
enforcement of other court orders.
[62] Section 34 of the Constitution guarantees everyone the right to access justice.
Section 34 does not attach conditions or exceptions thereto. Even people that have
been convicted in a criminal court have the right to access justice in terms of
section 34. W hilst the Applicant’s behaviour throughout the entire legal process
might be questionable or frowned upon, it does not justify an infringement of his right
to access justice in terms of section 34. For the First Respondent to limit the
Applicant’s right in terms of section 34, she would have to meet the high threshold of
what is required under section 36 of the Constitution insofar as the limitation of the
Applicant’s right to access justice in concerned. The Respondent has not done this.
The First Responde nt did present this court with some authority to support her
contention, however two of those authorities emanate from foreign jurisdictions and
the other two are pre-Constitution and accordingly hold no weight to her argument.
[63] If the First Responde nt had brought a counterapplication in terms of section
18 (2) and pleaded her fugitive from justice argument as the special circumstances
18 (2) and pleaded her fugitive from justice argument as the special circumstances
envisaged by the section, the argument was unlikely to have succeeded.
[64] Hypothetically, if the court found that the order of 17 October 2025 was not
interlocutory and that it was final in nature, and thus being compelled to go into the
second leg of the inquiry, I am satisfied that there are exceptional circumstances to
declare the order operational and executable. I am also satisfied that, on a balance
of probabilities, the Applicant will suffer irreparable harm if the order is refused, whist
the First Respondent will not.
[65] The minor child is the exceptional circumstance.
[66] The High Court is the upper guardian of all minor children, and the court has a
duty to make orders in accordance with their best interests. Section 28 (2) of the
Constitution and Section 9 of the Children’s Act dictate that a child’s best interests
must be considered in all matters in which a child or children are involved. The First
Respondent argued that the Rule 43 court already took the best interests of the child
into account, and thus it was not necessary to do so in this application. This
argument cannot be accepted because the relief sought from this court is completely
different from the relief that sought in the Rule 43 court. The matters, whilst linked to
one another, are separate and entail different legal arguments. The rights of the
minor child remain relevant to the matter at hand and must be considered by this
court.
[67] It is glaringly obvious that this level of litigation is not healthy for two people
that are purportedly supposed to co -parent. It doesn’t seem possible that these
parties’ relationship will ever be able to recover from the extravagant litigation. The
parties have dug their heals into the ground and there is no indication from either of
them that they intend to back off from each other in the legal sense. The parties’
thirst for litigation has caused them to lose sight of what is important, specifically the
minor child. The parties probably could have paid for the minor child’s entire tertiary
education with what they have spent on litigation thus far.
[68] It goes without saying that both the Applicant an d the First Respondent have
legal rights, however one must not allow the rights of the minor child to be lost in this
legal rights, however one must not allow the rights of the minor child to be lost in this
legal warfare between the parties. The minor child is her own person with her own
rights, which includes a right to know her genetic origins.
[69] The Applicant has a right to know whether the minor child is his biological
daughter, however the minor child has a right to know her who her father is and
where she comes from.
[70] As is clear from the international law, and more specifically the United Nations
on the Rights of the Child and the African Charter on the Rights and Welfare of the
Child. A child has a right to know and be cared for by his or her parents. A child has
a right to family relations. A child has a right not to be separat ed from his or her
parents against his or her will. If a child is separated from one or both of his or her
parents, he or she has a right to maintain personal relations with that parent he or
she is separated from. The Constitution dictates that children h ave a right to parental
care.
[71] What if the Applicant is not the minor child’s father? If the Applicant is not the
minor child’s biological father, she is being prevented from knowing the identity of
her real biological father, she is being separated f rom her biological father, she is
being prevented from maintaining a relationship with that biological father, she is
being denied the right to receiving parental care from that biological father.
[72] Section 36 read with Section 37 of the Children’s Ac t implies that if there is
reasonable doubt about the paternity of a child, a court may call for a DNA test to be
conducted. The Applicant has produced scientific medical tests that suggest he was
incapable of fathering the minor child. This does create re asonable doubt that he
could have fathered the child. This reasonable doubt is enhanced by the fact that
another man has brought proceedings in the Children’s Court for contact with this
child. One cannot accept the First Respondent’s argument that because the child
was during the marriage and that the First Respondent accepted the child means
that there is a balance of probabilities that he is the biological father. The scientific
that there is a balance of probabilities that he is the biological father. The scientific
evidence that the First Respondent is and was sterile at the time that the c hild was
conceived tips the scales in his favour.
[73] The First Respondent suggests that Section 36 of the Children’s Act should
not be considered because it only relates to children being born out of wedlock, and
this child was born of the marriage betwe en the parties. The marriage between the
parties is in dispute and, depending on the findings of the divorce trial court, it could
be that the child was born out of wedlock.
[74] Paternity is in dispute and will remain in dispute until a scientific based
medical test (“DNA Test”) has been conducted. The test will either confirm the
Applicant’s paternity, or it will prove that he is not the biological father. If the paternity
test confirms that the Applicant is the biological father of the minor child, he w ill have
to accept his duty to pay maintenance to his daughter. If the paternity test shows that
the Applicant is not the minor child’s biological father, the First Respondent will have
to consider her rights and possibly amend her pleadings in the main ac tion. One way
or another, the results of the litigation will aid the parties in moving forward.
[75] The minor child is two years and two months old. She is at an age where she
will not understand what a DNA test is. A DNA test is conducted, not by a bloo d test,
but by obtaining a swab of sylvia from inside the child’s mouth. The child will suffer
no pain or discomfort. The child will not be traumatised and will not know that
paternity is being disputed. If the paternity test shows that the Applicant is no t the
child’s biological father, the child is young enough to still develop an actual and
meaningful bond with her real father.
[76] The situation will be different in a few years’ time. In a few years’ time the
minor child will be able to ask questions an d may be able to understand what it
means to dispute paternity. It is better that the DNA test is conducted at an age
where the minor child cannot understand the process, before she can ask questions
and receive answers that will cause her severe psycholog ical damage. If the DNA
test is delayed, it may possibly deprive the minor child of a relationship with her real
father; it may be too late to develop an actual and meaningful bond with him.
father; it may be too late to develop an actual and meaningful bond with him.
[77] Whatever the result, the parties have a duty to handle the outcome
responsibly insofar as the minor child is concerned. They must carefully consider
what they will tell the minor child and handle it with absolute care, and with
professional help if necessary.
[78] The Respondent has not given this court proper reasons as to why she
refuses to submit the minor child to a DNA test and in terms of section 37 of the
Children’s Act, this brings into question her credibility. There is no logical reason to
refuse to submit the minor child to the DNA test. The First Respondent is warned, in
accordance with Section 37, that her continued refusal to submit the minor child for
the DNA test is going to further bring her credibility into question.
[79] There is no evid ence of any kind that the First Respondent will suffer any
harm. It will not even cost her any money as the Applicant was directed in the order
of the 17 October 2025 to cover the cost in relation thereto.
[80] The First Respondent will suffer irreparable harm if the order is not granted
because: -
[80.1] The main action cannot move forward until the marriage status of the
parties and paternity is confirmed. The Applicant’s life will just hang in limbo,
and he will not be able to move on with his life.
[80.2] The Applicant will continue to be liable to maintain the minor child and
the First Respondent which may lead to financial hardship.
[80.3] The First Respondent remains at risk of being prosecuted criminally for
his failure to maintain the minor child and the First Respondent. This would in
turn affect his suitability to continue practising as a legal practitioner and could
have dire consequences for his professional future.
[81] There is no legal basis on which this court can suspend the operation of t he
Rule 43 order. The only way the order can be varied or terminated is through Rule
43 (6) or by conclusion of the divorce. Depending on the results of the paternity test
and discovery of the parties’ marriage status, the Applicant will have to launch a
Rule 43 (6) or take the necessary steps to bring the divorce to finality.
[82] Section 6 (4) read with section 7 (1) (n) of the Children’s Act implies that all
[82] Section 6 (4) read with section 7 (1) (n) of the Children’s Act implies that all
matters relating to children are urgent. This is especially so in this case because the
longer the DNA is delayed, the greater the potential damage to the minor child. The
order by this court will minimise further legal and adm inistrative proceedings in
relation to the child, thereby acting in her best interests.
[83] It is in the interest of justi ce to bring this dispute to an end. The outcome of
the paternity of the child and marital dispute will potentially lead to the settlement of
all the other outstanding pending matters.
[84] I accordingly make the following order: -
1. That non -compliance w ith the forms, service and time periods
prescribed in the Uniform Rules of Court and/or Directives are hereby
condoned and the matter is accordingly accepted as urgent in terms of Rule 6
(12) of the Uniform Rules of Court.
2. That the provisions of section 18 (3) of the Superior Courts Act 10 of
2013 are hereby invoked and applied in respect of the order granted on 17
October 2025 by the Honourable Mushwana AJ.
3. That the order granted by the Honourable Mushwana AJ on 17 October
2025 is hereby declared operational and executable pending finalisation of the
leave to appeal filed by the First Respondent and such further appeals
processed which the First Respondent may in the future engage in arising
from the aforesaid order of the Honourable Mushwana AJ.
4. That the First Respondent pays the Applicant’s party and party costs in
accordance with scale B.
MADAM JUSTICE BURNETT
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR THE APPLICANT: - ADVOCATE TSHIGIDIMISA
INSTRUCTED BY: - TALENI GODI KUPISO INC.
FOR THE FIRST RESPONDENT: - ADV. NP MBHIZA
INSTRUCTED BY:- NTSAKO PHYLLIS MBHIZA ATTORNEYS
DATE OF HEARING: - 11 NOVEMBER 2025
DATE OF JUDGMENT: - 17 NOVEMBER 2025