HK v LN and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mia J |
| Judgment Date | 11 September 2023 |
| Docket Number | 16972/2022 |
| Hearing Date | 27 July 2023 |
| Court | Gauteng Local Division, Johannesburg |
Mia J:
The applicant seeks relief in two parts. In the first part, the applicant seeks relief that the first respondent avails a tissue sample of the minor children born after a successful invitro fertilisation(IVF) to determine their
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paternity. In the event that tests of the tissue sample positively identifies that he is the father, the applicant seeks a declaratory order in part B confirming his status as the father. The first respondent opposes the relief sought on the basis that the relief sought is unsubstantiated and is not in the best interests of the minor children. The first respondent raised certain points in limine.
It is necessary to consider the background to appreciate the context in which the relief is sought. The applicant and the first respondent are not strangers to each other. They are known to each other for more than twenty -two years. The parties have previously been in a relationship and since ending the relationship have maintained intermittent contact with each other. When the first respondent decided to have children after a losing a significant person she approached the applicant to assist. The applicant was required to furnish a specimen of semen to the third respondent who was enlisted to conduct the IVF process. The third respondent undertook the procedure in November 2017 and the first respondent was impregnated. In December 2017 the applicant left Johannesburg accompanied by his son to go on holiday to the Eastern Cape. The first respondent remained in Johannesburg. During this period the first respondent miscarried and the pregnancy ended prematurely. The first respondent was distraught. She continued attempting the IVF procedure the following year. However, she elected to use a different sponsor’s specimen. The first respondent conceived successfully and delivered twin boys in December 2018. A dispute exists regarding the specimen used during the IVF procedure. The applicant maintains he may be the father of the twin boys, whilst the first respondent insists that he is not.
In Limine
In considering the issues in dispute the issues in limine namely lis pendens and non-joinder are addressed first. Thereafter the dispute
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whether the applicant could be the father of the minor children is considered in order to determine whether the first respondent and minors should furnish tissue samples.
Lis Pendens
Counsel for the first respondent argued that the applicant launched proceedings in the Family Court requesting similar relief. The submission continued that the parties were the same, the cause of action was the same and the relief requested was the same. Counsel referred to the decision in Association of Mineworkers and Construction Union v Ngululu Bulk Carriers (Pty) Limited (in Liquidation) [1] where the Court stated:
“For a lis pendens defence to succeed, the defendant must show that there is pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter.”
The Children’s Court on 22 May 2022, held that the Children’s Court did not have jurisdiction to order a paternity test and ordered that the proceedings in that matter regarding the remainder of the relief be held over until the High Court had made a determination regarding Part A in the present application.
Having regard to the referral to the Magistrates Court it is evident that the parties are the same, and there may have been a request for similar relief. Section 45(1)(c) of the Children’s Act makes provision for the Children’s Court to make a determination with regard to paternity. The High Court however retains jurisdiction with regard to artificial fertilisation. In this context, however, the Children’s Court has indicated
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that it will not be making a determination on this aspect which is reserved for the High Court. The concern that there will be conflicting judgments cannot thus present a problem with regard to conflicting judgments as the jurisdictional issues are clearly delineated. In any event, the Children’s Court will not be determining this issue as it holds the matter in abeyance and awaits the High Court’s decision on the particular issue. The remainder of the relief sought in the present application does not conflict with the relief sought in the Children’s Court thus a conflict of judgments will not...
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