Regspraak: Onderhoudskostes vir koekoekskuikens – wie moet vir die gelag betaal, of rus die skade maar waar dit val?
Authors: Sonnekus JC 
Published: September 2023

Misattributed paternity of a child born from an adulterous relationship is nothing new. In principle the biological parents are obliged to maintain their child irrespective of the fact that it was conceived in an adulterous relationship. A single mother will usually claim maintenance from the paramour who fathered the love child and expect him to fulfil his parental obligations. By contrast, many a wife apparently has no scruples in keeping quiet about her adulterous relationship, notwithstanding the fact that she might have to reckon with the possibility (dolus eventualis as foresight of possibility or constructive intention) that any pregnancy that results might be from her liaison with her beau. In the case discussed here, the woman in question even maintained that she had an exclusive sexual relationship with her husband during the time that the child was conceived. In such a case the cuckolded husband is consequently kept in ignorance and maintains the child as the putative father – pater est quem nuptiae demonstrant. Often the true position becomes apparent only years later when by coincidence it materialises that the special medical care a particular child requires is the result of an inherited medical condition that could not have been passed via the putative father. He never was legally obliged to maintain this child and pay for all the medical care, nor did he intend as negotiorum gestor to generously stand in for these obligations of the biological parents. The biological parents are in reality enriching themselves at the cost of the husband of the adulterous mother thanks to their unjustified saving of these expenses. The putative father is entitled to claim for his unjustified impoverishment – ubi ius ibi remedium. Theoretically he may even have a claim against the child, but it is doubtful if the child can be proven to still be enriched at litis contestatio – contrary to the biological parents who were spared the expense, the child was not enriched by this form of saving. If the mother as the claimant’s erstwhile spouse prefers not to disclose the identity of the probable biological father of the child, he is left without an effective remedy. He does have the hollow satisfaction that thanks to the scientifically unrefuted results of the DNA tests it is proven that he is clearly not the biological father of the child. Although the putative father was under no duty to perform for the maintenance of the misattributed child, he cannot lay a claim against the – for him – unknown biological father, because the mother chose not to disclose the latter’s identity. If he had known the identity of the biological father, he would have claimed the money from him – but the wife chose to remain silent. Because both parents are obliged to maintain their offspring, it is submitted that the putative father should be able to claim the total amount due to him as his unjustified impoverishment from the mother of the child because she is liable in solidum as co-debtor with her erstwhile lover. It is unacceptable to dismiss the claim of the cuckolded putative father against his erstwhile wife under the pretext of her right to protect her private affairs and bed manners and hide behind her alleged right to remain silent. If she prefers not to disclose the identity of her joint debtor, her election should not be upheld at the cost of the putative father, and she should pay in full. She is not liable only because of her personal unjustified enrichment at the cost of her erstwhile husband; she is also effectively preventing him from bringing his claim against her erstwhile paramour and for that delict she should be liable irrespective of whether she is still enriched thanks to her saving of the cost of the child’s maintenance. The delictual claim for damages that resulted from the unjustified inroad by the respondent on the claimant’s right to performance against a third party is not dependent on her enrichment at litis contestatio because of her delictual conduct. The seriously delayed publication of the judgment of Van Zyl J in this case (it was published more than five years after the litigation was completed) that resulted in the dismissal with cost of the claim for R1 441 290 as damages by the putative father against his erstwhile wife does not instil trust in the court’s mastery of the applicable legal principles. The judgment conflicts with comparable judgments in most Continental legal systems related to South African law and even the latest judgments from the English family court. The reliance by the court on dated and unrelated Australian and Canadian judgments does not sanctify the errors. The claim for damages that resulted from the undue expenses paid by the putative father for the cuckoo child left in his nest is not to be confused with the classical claim under the actio iniuriarum for the iniuria suffered against the adulterous couple who made the significant inroads into his feelings of piety and dignity. The reliance by Van Zyl J on RH v DE for her judgment is consequently not convincing.