Court orders mother to send child for DNA testing in paternity dispute over maintenance

The issue of DNA testing came under the juristic spotlight in the Limpopo High Court with a man and a woman being embroiled in legal proceedings regarding maintenance for the child.

The husband denies being the father of the girl, arguing that it is impossible as he had a vasectomy years ago. He turned to court in a bid to force the mother to present the child for DNA testing before the maintenance dispute proceeded.

The judge, in ruling in favour of the husband, commented that it is the constitutional and statutory rights to identity and parental care. Another court earlier ordered the mother to submit the child to DNA testing, but the mother never did this. In this recent application, forcing the mother once again to do so, the judge said she will suffer no prejudice, as the husband will pay for the DNA tests. The judge also noted that a paternity test will for once and for all resolve the maintenance dispute.

The parties were involved in a relationship which the woman claims was a valid customary marriage, which the husband disputes. According to the woman, her husband is the biological father of their now two-year-old daughter, but the husband said this is impossible.

The parties are in the process of divorcing, with their alleged customary marriage being one of the issues in the divorce proceedings. The woman, however, earlier obtained an order in the Children’s Court that the husband had to pay maintenance towards the child pending the finalisation of the divorce proceedings.

Unhappy with her having to submit the child and herself to a paternity test, the mother noted an appeal against it, but thus far nothing came of the appeal. In between all of this, a male third party meanwhile launched an application in the Children’s Court to obtain visitation to the child, which he claims is his child.

The husband meanwhile paid the maintenance towards the child, as he was ordered to do, but he only paid for six months before he stopped. This resulted in many court applications by the woman, who even wanted a warrant of arrest to be issued against her husband for his failure to pay.

But the husband now refuses to comply, until DNA tests are done, pointing to him as being the father. He said he had a vasectomy in 2010 already and he suffers from a medical condition, which makes paternity impossible.

The man argued that delaying the DNA test would prolong uncertainty and infringe on the child’s rights to know her origins. The court said the man will suffer irreparable harm if the order is refused, whilst the woman will not.

“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,” the judge said. The court also noted that the parties have dug their heels 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, while they lose sight of what is important - the child.

It was further noted by the court that while both the adults have legal rights, it must not be allowed that their legal warfare impedes on the rights of the child.   "The minor child is her own person with her own rights, which includes a right to know her genetic origins,” the court said.

zelda.venter@inl.co.za