THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 465/09
In the matter between:

Y D (NOW M)

Appellant

and

L B

Respondent

Neutral citation: YM v LB  (465/09) [2010] ZASCA 106 (17 September 2010)

Coram:
Harms DP, Lewis, Ponnan JJA and Ebrahim and K Pillay AJJA

Heard:
8 September 2010

Delivered
17 September 2010

Summary:    Scientific tests on a child to determine paternity should not be ordered
where paternity has been shown on a balance of probabilities.

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Murphy J sitting as
court of first instance).
1 The appeal is upheld with costs including those of two counsel.
2 The order of the high court is replaced with:
‘The application is dismissed with costs.’

JUDGMENT

LEWIS J (HARMS DP, PONNAN JA AND EBRAHIM AND PILLAY JJA
concurring)

[1] The appellant, Mrs Y M (M), appeals against an order that she and her
daughter, Y, submit to DNA testing to determine whether Mr L B (B), the
respondent, is the biological father of Y. The order was sought by B who
claimed, if the tests proved that he was indeed the father, in addition that he
be given full parenting rights. The high court ordered that M submit herself
and Y to DNA tests within 30 days of the order and postponed the other relief
sought sine die. The appeal against the order is with the leave of this court.
On appeal B did not file heads of argument; nor was there any appearance
for him.

[2] Murphy J in the high court considered in considerable depth the cases
– often in conflict with one another – that have dealt with orders to submit to

blood tests to determine paternity. These, and cases in other countries
dealing with orders to submit to scientific testing to determine paternity, were
also discussed at length by Didcott J in Seetal v Pravitha.1 The high court
also considered the possible changes wrought by the provisions of the
Children’s Act 38 of 2005. The judgment of Murphy J is reported.2 I do not
propose to traverse the same material because it is not warranted on the
facts. I shall revert to the principles on which the order was made, but shall
first set out the facts which were largely not in dispute.

[3] M and B commenced a sexual relationship in February 2006. They
started living together in October of that year and became engaged in
November. B told M at the end of the year that he would be going to work first
elsewhere in the country, and then abroad, for a short period the following
year. Accordingly in March 2007 she went to stay for what was thought to be
the period of his absence in Musina, where her parents lived.

[4] In fact B did not go abroad. He frequently phoned her – on her version
under the influence of alcohol – and she became disillusioned with the
relationship. She alleged that before she had moved to Musina he also drank
heavily and returned home inebriated late at night.

[5] Late in March 2007 M discovered that she was pregnant. She was
certain that B was the father and alleged that it was not actually ever in issue
save for one occasion when he denied paternity when speaking to her over
the phone one night – apparently under the influence of alcohol. But he
retracted the denial – which he could not even remember – the following
morning.

[6] Although B also denied his paternity in a letter sent by his attorney to
M later, after the child’s birth, his conduct and other correspondence with her

1 1983 (3) SA 827 (A).
2 LB v YD  2009 (5) SA 463 (NGP). The judgment of the high court refusing an application for
leave to appeal is also, unusually, reported in the same volume at 479.

show unequivocally that he believed that he was the father. A telling factor is
that he paid R1 000 into M’s bank account in each of April, May and July
2007, which is consistent with his belief that he was the father of the unborn
child.  Most importantly, in his founding affidavit B stated that he believed that
he was Y’s father and wished to develop a relationship with her.

[7] Despite her certainty that B was the father of the child M decided to
break the engagement. She told him this when he visited Musina in April
2007. They agreed to remain in contact. She revived a relationship with a
former boyfriend (Mr M) and they became engaged in June and married in
July that year. She told B that they would have to make arrangements
(presumably about support and access) after the child’s birth.

[8] In September 2007 M phoned B and advised him of the expected date
of birth (mid-November). In October he sent a message to her asking her to
keep in touch and saying that he had had difficulty contacting her by
telephone. She responded and asked him to send a letter with his proposals
(again one assumes as to support and access).

[9] Y was born on 8 November. M phoned B the day she was discharged
from hospital. He wanted to see Y. She said she would contact him in this
regard at a later stage. But then two days later his attorney sent the letter
referred to stating that he strongly denied paternity but was willing to pay for
blood and DNA tests to determine the issue.

[10] M, who had previously been willing to allow B to be part of Y’s life,
responded through an attorney saying that he would not be afforded any
parental rights and would not be bound by any obligations to Y. B did an
about turn. The next letter from his attorney stated that B was ‘100 per cent’
certain that he was Y’s father but that he wanted M and Y to undergo blood
tests. She refused to comply – hence his application for an order to compel
testing.

[11] As Murphy J himself pointed out the minor disputes of fact must be
determined having regard to M’s averments and denials unless these are
untenable.3 These disputes were essentially as to dates and exchanges
between the parties. In fact, B did not ever deny paternity in his affidavits: he
simply sought scientific certainty. And the high court’s finding that M may
have been intimate with her husband, M, at the time of Y’s conception is
unwarranted given that the only evidence for this was B’s statement in his
replying affidavit that he had heard from a friend that M had commenced a
relationship with M at the time when conception had occurred.

[12] Paternity was thus not actually in dispute. And accordingly the high
court should not have ordered M and her daughter to undergo DNA testing.
Indeed there was no reason to order M herself to be tested: her maternity
could not have been in doubt!

[13] That brings me to the principles on which the high court made its order.
First, as I have already said, the issue of paternity in this case was
determinable on a balance of probabilities. What B asked for was scientific
proof – something to which he was not entitled. No doubt there are cases
where there is genuine uncertainty as to paternity and a DNA test should be
ordered for the child in question. It is within the inherent power of a court, as
the upper guardian of children, to order scientific tests if this is in the best
interests of a child, as Murphy J found.4 And indeed s 37 of the Children’s Act
anticipates the use of scientific tests to determine paternity. It provides that
where paternity is in issue in legal proceedings and a party refuses to submit
to ‘scientific tests’ the court must warn him or her of the ‘effect which such
refusal might have on the credibility of that party’. But this is not a case in
which that inherent power need have been invoked given that paternity was
not disputed.

3 The so-called Plascon Evans principle: Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A).
4 Para 22.

[14] Second, the high court concluded that ‘truth is a primary value in the
administration of justice and should be pursued, if not for its own sake, then at
least because it invariably is the best means of doing justice in most
controversies’. And: ‘Where we come from and who we are, for most people,
are questions within the realm of the sacred.’ The judge continued: ‘to
exclude reliable scientific evidence because it involves a relatively minor
infringement  of privacy more often than not will harm the legitimacy of the
administration of justice’.5 He concluded:6
‘In short, I agree with those judges and commentators who contend that as a general
rule the more correct approach is that the discovery of truth should prevail over the
idea that the rights of privacy and bodily integrity should be respected . . . . I also
take the position . . . that it will most often be in the best interests of a child to have
any doubts about true paternity resolved and put beyond doubt by the best available
evidence.’

[15] It is clear, in my view, that the rights to privacy and bodily integrity may
be infringed (by a procedure ordered by a court in the exercise of its inherent
jurisdiction) if it is in the best interests of a child to do so. These rights, like
others enshrined in the Constitution, may be limited where it is reasonable
and justifiable, applying the criteria in s 36(1) of the Constitution. As I have
said in this case it is not, but in others it might well be justifiable to order blood
or DNA tests.

[16] However, whether the discovery of truth should prevail over such rights
is a matter that should not be generalized. As Didcott J said in Seetal7 it is not
necessarily always in an individual’s interest to know the truth. In each case
the court faced with a request for an order for a blood test or a DNA test must
consider the particular position of the child and make the determination for
that child only. The role of a court, and its duty, is to determine disputes in
civil matters on a balance of probabilities. It is not a court’s function to
ascertain scientific proof of the truth.

5 Para 21.
6 Para 23.
7 Above 864G-865C.

[17] The appeal is upheld with costs including those of two counsel.
The order of the high court is replaced with:
‘The application is dismissed with costs.’
____________
C H Lewis
Judge of Appeal

APPEARANCE
APPELLANT:

Ms K I Foulkes-Jones SC

(with her S Mentz)

Instructed by Davel de Klerk Kgatla Inc,

Pretoria

Naudes , Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

PRESS RELEASE
17 September 2010
STATUS: Immediate

YM v LB (465/09) [2010] ZASCA 106 (17 September 2010)

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today upheld an appeal against an order of the
North Gauteng High Court (Pretoria) that a woman (YM) and her child (Y)
undergo DNA testing to determine whether LB was the father of the child. LB
had applied for an order compelling the tests. If paternity was proved he
wanted a further order that he be afforded full parenting rights.

The high court held that it had the inherent jurisdiction to order scientific tests
to determine paternity, and expressed the view that it was always in the best
interests of a child to know the identity of his or her biological father.

The SCA found that the order was not warranted on the facts. Although there
were minor disputes between YM and LB as to their various interactions
before and after conception, and after the birth of the child, LB had not
actually disputed paternity. There was thus no need for scientific tests. The
court said that there might well be cases where paternity is genuinely in
dispute and thus where DNA or other testing should be ordered. In such
cases the infringement of the child’s privacy and bodily integrity might be
reasonable and justifiable. This was not such a case. The SCA also said that
it was not necessarily always in the best interests of a child to know the truth:
each case had to be determined having regard to the particular child’s
circumstances.

The order that the mother be tested had been completely unjustified: testing
her would not lead to a conclusion as to paternity.

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