The following case illustrates that a father who pays maintenance under the impression that he is the natural father of a child may not have a claim to sue the mother of the child to repay the maintenance when he eventually finds out through a paternity DNA test that he is not the natural father of the child.
The case of Nel v Jonker in the High Court in Cape Town concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989. Their union bore a daughter, Nicole, who was born in June 1990. For the sake of convenience I shall refer to the parties as in the court a quo.
On 3 February 1995 the parties were divorced by order of this Court and pursuant thereto the Plaintiff was directed to maintain Nicole by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.
It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for Nicole. The said sum included payment of an amount of R1000,00 to the Edgemead Primary School in January 2000.
In June 2006 Nicole underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff, this Court issued an order declaring that he was not the natural father of Nicole and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards Nicole. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00 His claim was upheld and the Defendant now appeals against the order of the magistrate.
It was common cause that the parties were married on 25 February 1989 and that Nicole was born on 12 June 1990. Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.
We know nothing about the circumstances of this dalliance because there was no evidence put before the magistrate in that regard. The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained Nicole for more than ten years. He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test. The Plaintiff also testified that he was urged by certain family members to go for such tests. They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.
The Plaintiff concluded by saying that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. As I said earlier, the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy. Importantly, there is no evidence to suggest that she knew that her adultery had resulted in the birth of Nicole and that she intentionally withheld that information from the Plaintiff. Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.
The Plaintiff’s legal obligation to pay the maintenance in respect of Nicole arises directly from an order of this Court and was accordingly an obligation he could not avoid. The basis therefor was his assumption that a child born during the subsistence of the marriage was fathered by him. This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.
While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff. The Judge demonstrated that the Supreme Court of Appeal has disregarded any notional distinction between mistakes of law and fact: the focus is essentially on whether the payment was made indebitum i.e. without legal ground.While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so. When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that Nicole was his daughter. As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.
Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case. Suffice it to say that courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.
The Judge found that the court a quo erred in finding that the Plaintiff had established a claim of enrichment.