Who’s your Daddy?, paternity testing and South African Law

As a Family Law attorney I do get a lot of cases where paternity is denied, especially when maintenance responsibilities comes into play.South African law acknowledges three kinds of blood tests to determine paternity, these are:

  1. The first and oldest test is based on an analysis of the blood cells. And antiserum is used in this test to identify the blood groups of the mother, her spouse and the child. Because parents belonging to particular blood groups can procreate children belonging only to a limited number of possible blood groups, this test can sometimes indicate that the father concerned cannot be the father of the child. Owing to the fact that lots of people belong to the same blood group, the test cannot determine who actually is the father of the child.
  2. The second kind of test is based on an analysis of white blood cells and is known as the HLA system of tissue typing. By determining the haplotype of the child as well as of both husband and wife, it can be determined whether the child has indeed inherited one haplotype from each of the two adults. This test can positively identify the natural father of the child concerned. In previous cases before the courts medical evidence was accepted that the tissue typing will indicate the natural father to a degree of probability of 99.9%. This test can therefore be used to show that the husband of the child’s mother is not the father of the child.
  3. The most recent test, namely the DNA system of identification, has previously been used to identify criminals after analyzing the blood, tissue and even saliva or semen found at the scene of a crime. DNA tests can be used to identify paternity to a very high degree of certainty. The test normally involves determining the DNA structures of all the parties involved. These DNA patterns are transmitted to a person’s descendents. Owing to the fact that the DNA inherited from the mother is distinguishable from that of the father, a particular man can be positively identified as the natural father of the child.

The Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate. This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Section 37 of the Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility.

Refusal by mother to submit her and child to testing

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.

About the Author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

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