Misattributed Paternity: Should There be a Right to Reimbursement of Maintenance Erroneously Paid?
| Jurisdiction | South Africa |
| Author | Rani Pillay |
| Published date | 16 August 2019 |
| Date | 16 August 2019 |
| Citation | (2012) 23 Stell LR 583 |
| Pages | 583-597 |
583
miSattRiButed PateRnity: Should
theRe Be a Right to ReimBuRSement
of maintenanCe eRRoneouSly Paid?
[diSCuSSion of nel v JonkeR (a653/2009) 2011
ZaWChC 5 (17 feBRuaRy 2011)]
Rani Pillay
BProc MChPr LLM
Lecturer, University of KwaZulu-Natal
Frederick Noel Zaal
BA LLB LLM PhD
Professor, University of KwaZulu-Natal
1 Introduction
Serious consequences ca n arise after a m an contributes to nur turi ng
a child under the false belief that he is t he child’s biological father. Once
they discover the trut h, both the misatt ributed father and chi ld are likely to
experience emotional turmoil.1 Of par ticular concer n is that the child may
be deprived of a sense of identity. Aside from the psychological consequences,
it is probable that the legal consequences wi ll be signicant. The child may
lose a legal relationship with a man he or she has h itherto regarded as a father,
and the right for the child to conti nue to claim economic support f rom the
misattribut ed father will cease. On h is side, a man falsely attribute d with
fatherhood is released from f uture parent al responsibilities and r ights. He
might also retrospect ively seek nancia l redress for the misattributed paternity,
including reimburseme nt of child maintenance payments e rroneously made
by him. There is no South Af rican legislation indicati ng expressly whether
there is a right to do this. A nd until recently there h ave been no reported
cases on the question. However, on 17 February 2011 the Wester n Cape High
Court in its judg ment in Nel v Jonker 2 (“Nel”) provided the rst gu idance on
whether child maintena nce payments can be reclaimed.
In our discussion, we consider the ap propriateness of mainte nance repayment
to misattr ibuted fathe rs in the light of the Nel judgme nt. The t wo inter related
questions we explore are whether such fathers shou ld have a right to claim
reimbursement and what would be the be st approach to take in South African
law. To esta blish a context we investigate rstly the most relevant existing
1 H Draper & J Ives “Pat ernity Testing: A Poor Test of Father hood” (2009) 31 J Soc Welfare Fam Law 407
407 See also the Austr alian case of Magill v Magill [2006] HCA 51 (9 November 20 06) and the English
case in which Ge rard Bradbur y recovered maint enance payment s of £30,000 plus inter est paid over more
than seven yea rs: BBC News “CSA Pays ‘Wrong’ Dad” (17-10- 2001) BBC News
hi/uk_news/wales/1604281 stm> (accessed 02-04-2012)
2 (A653/2009) 2011 ZAWCHC 5 (17 Februar y 2011) SAFLII <http://www saflii org/za/cases/ZAWC
HC/2011/5html> (accessed 03-07-2012)
(2012) 23 Stell LR 583
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South African law. We show that, although there is no express di rection on
maintenance reimbu rsement in any stat ute, there is teleology in part icularly
the Children’s Act 38 of 2005 (“the Children’s Act”) on which courts could
usefully draw in f uture matt ers. In relation to South Af rican case law, we
briey note the position on mandatory pater nity testing since this often arises
as a subsidiary issue i n misattributed pater nity litigation. In the second part of
our discussion we consider approaches favoured i n other systems.3 We note
and evaluate the main ar guments for and against maintenance r eimbursement
that have developed in some selected jurisd ictions where courts h ave had
greater experie nce than in South Africa. I n light of both existing South Afr ican
law and conclusions reached in other syste ms, we then critically evaluate t he
groundbreak ing Nel judgment itself. We contend that its effect is unfortu nate
in rendering it almos t impossible for misat tributed fathers to claim under any
circumstanc es. Finally, in our conclusion we propose that in the wake of this
precedent there is a need for specic and corrective legislation, and we offer
some recommendations on t he form t his could take.
2 South African law prior to Nel v Jonker
Although section 28 of the Constit ution of the Republic of South Africa,
1996 (“the Constitution”) provides some specic rights for children it doe s not
expressly refer to maintenance. W hat may be relevant, however, is that section
28(1)(b) provides all child ren with a right “to fam ily care or parental ca re…”.
And section 28(1)(c) entitles children , inter alia, to basic nutrition and shelter.
It is also noteworthy that section 10 provides all person s (obviously including
both children and mi sattributed fat hers) with the right to respect for and
protection of their dignit y. A reading of the Maintenance Act 99 of 1998 (“the
Maintenance Act”) reveals no c overage of reimbu rsement of child maintenance
to misattr ibuted fathers. On the cont rary, the primar y concern unde rlying this
Act is that of supporting claim s for maintenance which is legally due.
It is explicated in the Child ren’s Act that nurt uring a child is in the rst
instance the dut y of a person whom the law regards as bea ring parental
responsibility for that child. I n section 18(2) of this Act it is stated that:
“The parental responsibilities and rights that a person may have in respect of a child, include the
responsibility and the right –
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.”
3 Our compar ative focus is mai nly on Anglo-i nfluenc ed jurisdic tions Th e issue of mainten ance
reimburse ment following dis established p aternity h as tended to be less controver sial in Scandi navian
and Contine ntal Europea n systems This is because of the s tate’s relatively great er involvement in
admini stering chi ld support in t hese systems Thus, for exa mple, in Norway, Sweden , Germany an d
France the sta te guarantees or a dvances maintena nce in case of default For a discus sion of the position
in these syst ems see CSA (Australia) “Child Sup port Schemes: Australi a and Comparisons” (03-2001)
CSA p://www csa gov au/publications/schemes98 -99 php#_Toc508687177> (accessed 03-07-2012)
See also C Skin ner, J Bradshaw & J Davidson ( Department of Work and Pensio ns, UK) Child Support
Policy: An International Perspective Research Report 405 (2007) 35; and R Par sche & R Osterka mp
“Child Suppor t and Children’s Tax Allowanc es in Selected Euro pean Countrie s” (2004) 2 DICE 50-54
584 STELL LR 2012 3
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It was held by Rall AJ in Wheeler v Wheeler4 that th is provision has
effectively continued the pre-ex isting law of child maintenance. However,
as can be seen, pare ntal responsibilities and r ights entail far more tha n just
nancial provision. It should also be not ed that section 18(1) of the Children’s
Act makes it clear that parental re sponsibilities and rights can be exercised by
persons who are not biological parents, or even related to a ch ild.5 In fact,
parental responsibil ities and rights can be sha red among several people. As
Skelton et al observe:
“[T]he Children’s Act goes further [than the common law] as it allows the courts to grant any person
responsibilities and rights in respect of a child, even if there is no biological or legal relationship
between the child and the adult.”6
The Children’s Act thus allows for other possibilities besides a genetic
tie as a pre-requisite to a pa rent-child relationship. In keeping wit h modern
developments elsewhere,7 it enables recognition of a wide variety of family
forms. It acknowledges changes in fam ily structu res and values evolving in
contemporary societ y.8 It espouses a more progressive, pluralistic view of
parents and famil ies than the common law and ea rlier legislation. Although
it is still most frequently li kely to be biologically related persons who are
allocated parental responsibilities,9 a positive thread in the Childr en’s Act is
recognition of families on t he basis of function rather than form. By allowing
for non-exclusive, non-traditional parenthood , the Children’s Act enables
simultaneous child rearing by multiple parenting gu res. Thus, even persons
unrelated to child ren such as erstwhile putative fathers can be assigne d some
or all the aspects of care, cont act, maintenance liability and gu ardianship.10
The exibilit y of parental responsibilities and rights as conceptualised in
the Children’s Act is signicant. Where t he truth about non-paternity of a
misattribut ed father has been revealed, hi s legal relationship with the child does
not have to end. It might simply take on a new form because it is pos sible for
him to elect to continue pa renting the child socially and legally. He could, for
example, in terms of section 22 of the Act enter i nto a parental responsibilities
and rights agreeme nt with the mother.11 In this he could agre e formally to a
4 2011 2 All SA 459 (KZP) para 14
5 This is becau se of the use of the broade r term “person” a s opposed to “pare nt”
6 A Skelton, M Carn elley, S Human, JA Robinson & BS Smith Fa mily Law in South Africa: P rivate Law
(2010) 241
7 See CP Kind regan The New Parentage: O f Families, Sex, and Ase xual Choices Suffolk Un iversity Law
School Faculty Pu blications Paper 31 (2006) 5
8 On these chan ges see I Dey & F Wasoff “Mixed Me ssages: Parental Re sponsibilitie s, Public Opinion a nd
the Reforms of Fami ly Law” (2006) 20 Int J La w Policy Family 225 225-248 See also Kindregan Th e New
Parentage: Of Familie s, Sex, and Asex ual Choices 5
9 B Clark “From Rig hts to Responsibilities? An O verview of Recent D evelopments Relating to Parent /
Child Relation ships in South Afr ican Common Law” (20 02) 35 CILSA 216 216, 219
10 220
11 The relevant p art of s 22 provides as follows:
“22 Parenta l responsibilitie s and rights agre ements
1) Subject to s ubsection (2), the mother of a child or o ther person who has par ental responsibilit ies
and rights i n respect of a child may ente r into an agreement pr oviding for the acquis ition of such
parental re sponsibilities a nd rights in respe ct of the child as are set o ut in the agreemen t, with -
a) the biological f ather of a child who doe s not have parental re sponsibilitie s and rights in r espect
of the child in te rms of either sectio n 20 or 21 or by court order; or
b) any other person havi ng an interest in t he care, well-being a nd development of the child ”
MISATTRIBUTED PATERNITY 585
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future allocat ion of care, contact, mainten ance or even guardian ship. Even if
a biological parent disagreed with t his, he could approach a court to have such
responsibilities and rig hts assigned to him in t erms of sections 23 and 24 of
the Act.12 The elast ic possibilities for allocation of parental responsibilities are
a positive feature of the Childre n’s Act. Potentially, a child’s existing pa rental
relationships could be protect ed by the child continuing to receive benets of
a legal relationship with an erst while putative father. The Childre n’s Act has
thus explicated children’s fundament al constitutional rig ht to family care or
parental care in ways t hat are encompassing and supportive. This cou ld allow
for continuance of a child’s legal relationship with a misattr ibuted father. The
Act, however, does not clarify the legal position on maintena nce paid because
of a false belief about a biological tie with a child.
Because there is u nfortunately no specic direct ion in South African
legislation on whether maintenanc e paid by a misattributed father can or must
be reimbursed, it is nece ssary to consider case l aw. As noted above, prior to
the Nel judgment there wa s no reported case author ity directly on the p oint.
There are, however, earlier cases concer ning a subsidiary qu estion which (as
noted above) often arises. Where a man d iscovers a reason to doubt whether
he is the father of a particul ar child, he may decide that pater nity testing
is appropriate. It is for this reason t hat courts are oft en requested to order
paternity te sting in cases of possible misat tributed fatherhood . There have
been several report ed High Court decisions from differ ent jurisdictions over a
period of almost thre e decades.13 In these, rather di fferent conclusions were
reached. When t he issue nally came before the Supreme Cour t of Appeal in
2010 i n YM v LB14 (“YM”) it was hoped that it would be nally resolved and
that legal certai nty would thereafter ex ist on the power of courts to compel
paternity t esting. Unfortun ately, a unanimous court m issed this valuable
opportun ity and side-stepp ed the issue by nding that paternity was not really
in dispute.15 It was held that th is obviated the need for a determ ination on
12 The relevant pa rts of ss 23 and 24 read:
“23 Assignme nt of contact and care t o interested per son by order of court
1) Any person having an inte rest in the care, well-b eing or development of a child may ap ply to the
High Court , a divorce court in d ivorce matters or the c hildren’s court for an orde r granting to the
applicant, on su ch conditions as the c ourt may deem nece ssary -
a) contact with the chi ld; or
b) care of the child
24 Assignme nt of guardiansh ip by order of court
1) Any person having an i nterest in the ca re, well-being and devel opment of a child may apply to t he
High Court fo r an order granti ng guardians hip of the child to the ap plicant
2) When conside ring an applic ation contempla ted in subsect ion (1), the court must t ake into
account –
a) t he best interest s of the child;
b) the relationship between t he applicant and the child, a nd any other relevant person a nd the
child; and
c) a ny other fact that shou ld, in the opinion of th e court, be take n into account ”
13 See, for example, Se etal v Pravitha 1983 3 SA 827 (D); M v R 1989 1 SA 416 (O); O v O 1992 4 SA 137 (C);
Nell v Nell 1990 3 SA 889 (T); S v L 1992 3 SA 713 (E) and D v K 1997 2 BCLR 209 ( N)
15 341B para 12
586 STELL LR 2012 3
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whether paternit y tests should be ordered.16 The cou rt, per Lewis JA (Har ms
DP, Ponna n JA and Ebrah im and Pillay AJJA concurring) concluded:
“[W]hether the discovery of truth should prevail over [the rights to privacy and bodily integrity] is
a matter that should not be generalized… [I]t 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 a 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 scientic proof of the truth.”17
As a result of this dict um it rem ains difcult for legal representatives to
advise clients who wish to dispute pat ernity about the chances of obtaini ng an
order for mandatory test ing.
3 Arguments against and in favour of maintenance
reimbursement
The primar y argument agai nst reimbursement of mainte nance to a
misattribut ed father is that it is against t he best interests of the child. By
requiring t he mother (or other current caregiver) to reimbur se money,
nancial resources available to continue nurturing the child are decreased
– perhaps to the point of severe mater ial hardship for the child.18 Cour ts in
other systems utilising this approach simply apply a legal ction and invoke
best interests as a t rump card.19 According t o Seliber, judges who engage in
this t ype of “result- rst reasoni ng” appear to empl oy the following arg ument:
Someone had to pay maintena nce. Whether that someone happ ened to be the
child’s father is irrelevant if he slept with the child’s mother at a time when
conception could have occurr ed. It remains ir relevant even if his conduct is
scientically proven not to have led to conception. His money is just a s green
as the biological father’s money. Someone else might be paying maintenance
for one of the putative father’s children, so it all evens out.20
The best inter ests nancial argument is wea kened in situations where a
wealthy mothe r has a mple nancial resou rces of her own for nurturing the
child. However, it is true that loss of futur e maintenance coupled with liability
for reimbursement of maintena nce already paid by a disest ablished father
may in ot her circumstances place a mother in nancia l hardship. This cou ld
indeed impact negatively on the child’s well-being. But it can be argued that
the mother should recoup any mainte nance repaid to a misat tributed father
by seeking it from the biological father.21 W hat should be borne in mind is
16 341B-E para 13 For critiques, se e E Bonthuys “What You Don’t Know Can’t Hurt You: The Supre me
Court of Appe al and the Presu mptions of Pater nity” (2011) 128 SALJ 427-436; and M Buthelezi “A
Missed Oppo rtunit y to Settle the Law on DNA Testi ng in Paternit y Disputes: YD (now M) v L B 2010 6 SA
338 (SCA)” (2011) 32 Obiter 480-488
17 YM v LB 2010 6 SA 338 (SCA) 342A-B para 16
18 See S Seliber “ Taxation without Duplic ation: Misattr ibuted Patern ity and the Putat ive Father’s Claim for
Restitutio n of Child Support” (20 07) 14 Wash & Lee JCR & Soc Just 97 104, 123
19 See, for example, t he US case of Paternit y of Cheryl 746 NE 2d 488 (Mass 2001) In Mi scovich v Miscov ich
688 A2d 726 (Pa Super C t 1997) 730 the court reje cted Miscovich’s petition t o relieve him of even fut ure
child suppor t See also Seliber (20 07) Wash & Lee JCR & Soc Just 115
20 Seliber (2007) Wash & Le e JCR & Soc Just 115
21 104, 123
MISATTRIBUTED PATERNITY 587
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that in many cases it was the mot her’s deceit in not identifying the child’s
biological father at the outset that ultimat ely gave rise to the harm suf fered
by the child – not the conduct of the disestablishe d father. By allowing the
mother to retain the benet, a cou rt is, in effect, endorsing and rewarding
her deceit. 22
It has been argued th at where a relationship between a man a nd a woman
is based on an assu mption of monogamy, misatt ributed paternity is denitive
pro of of inde lity.23 Absent a memory-incapa citating cause, a married woman
who has not been monogamous must recogn ise the reasonable possibility that
her husband may have been misidentied.24 It can be contende d that once
the truth is d iscovered mere discharge from f uture mainte nance obligations
is not suf cient r elief for a disestablished father. Much more is required, not
the least of which is retur n of past maintenance payme nts as money wrongly
received.25 It has also been suggested that just ice and fairness demand that the
disestablished father be able to re cover past maintenance because an incor rect
belief led him to take on the resp onsibility of fatherhood.26 Misin formation
(deliberate or otherwise) impacted adver sely on the voluntariness with wh ich
he assumed this res ponsibility.27
An argument ba sed on ethics is that to disa llow reimbursement can send a
wrong message to unfaithful wives that it is legally acceptable (and protable)
to be unfaithf ul, procreate a child and pa ss it off as their husband’s. Denying
reimbursement also fail s to address the ti me and energy, both physical and
emotional, invested by a misat tributed father in ch ild rearing.28 As Seliber
observed, child suppor t is not merely a particula rly serious obligation, but
also one not readily dischargeable. It renders a p erson liable for approximately
two decades of a child’s life, depending on when the child becomes self-
suppor ting.29 Refusing clai ms for reimbursement fails to a cknowledge the
sacrices, person al a nd nancial, as well as lifestyle decisions made, in
consideration of the child’s dependence.30 Where biological ties are crit ical
to a man’s decision in assuming the role of social father, inability to r ecoup
past maintenance pay ments deprives him of resou rces perhaps requir ed to
start anothe r family in which he can create a nd raise biological progeny.31
Where he has alrea dy started such a fa mily, disallowing reimbursement may
22 117 See also A Ba inham “‘Truth wil l Out’: Paternity in E urope” (2007) CLJ 278 280
23 Draper & Ives (2009) J So c Welfare Fam Law 412 See a lso J Ives Becoming a Father/Refusing Fatherhood:
How Paternal Res ponsibilities an d Rights are Generate d PhD thesis Birm ingham (2007) 295
24 Seliber (2007) J So c Welfare Fam Law 113
25 108
26 123 See also Draper & Ive s (2009) J Soc Welfare Fam Law 412 and the US cases of William s v Williams
27 Draper & Ives (2009) J So c Welfare Fam Law 412
28 H Draper “Pate rnity Fraud and Comp ensation for Misattr ibuted Paternity ” (2007) 33 J Med Ethics 475
475
29 Seliber (2007) Wash & Le e JCR & Soc Just 100
30 Draper (2007) J Me d Ethics 476
31 L Cannold “W ho’s the Fathe r? Rethinking the Mo ral ‘Crime’ of ‘Paternity Frau d’” (2008) 31 Women’s
Studies Inte rnational Foru m 249 250
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deprive his own children of essential nancial resources.32 This is particularly
relevant in cases where he is impoverished .
Even the primary, best intere sts contention that maintenance r eimbursement
is inevitably antithetical to non- biological children’s right to future material
resources can be challe nged. Denying a misatt ributed father who seeks such
reimbursement is li kely to cause anger and a sense of injustice. Thi s may
encourage him to w ithdraw future nancial sup port. If a court instead orde rs
repayment, this wi ll provide a sense of redress. With such redress may come a
reduction in anger, and from t his ultimately an easier wi llingness to conti nue
to associate with the non-biological child, bot h socially and through f uture
nancial provision. This possibil ity would appea r to be wort h pursuing,
particularly where t he man previously bonded strongly with t he child and
therefore might continue to do so if hi s sense of having been disadva ntaged
can be diminished.
In conclusion, what is perhaps most usef ul about the contentions above
is their illumi nation of the differing ci rcumstances i n which claims for
reimbursement may be made. I mportant variables which emerge are: whether
there was intentional dec eit per petuated by the mother, whether the child and
misattribut ed father have bonded strongly, and whether it is possible for all or
some mainte nance to be repaid without na ncially disadvantaging the child
severely. The variety of possible circumstance s leads to a conclusion that a
complete prohibition of a right to claim by any misatt ributed father, regardless
of the situation, is untenable. Successf ully applying to court for reimbu rsement
of maintenance should at least be a possibil ity. In light of this, in the next
section we consider the implications for mand atory paternity testing.
4 Applications for paternity enquiri es and the misattributed
father
As noted above, where a man is uncer tain about pater nity he may wish to
approach a court for an order c ompelling the mother and child to c ooperate
in a process of patern ity testing. Many of the same arg uments noted above
as favouring reimbur sement also support mand atory testing. T hus, it can be
contended that where a putative fathe r has well-founded doubts, he should
not be left without certai nty because of the highly pe rsonal nature of the
father-child relationship.33 As against th is, it might be argued th at allowing
misattribut ed fathers to gain in formation and then potent ially as a result
cease parenting is cont rary to the be st interests of the child. The ch ild may
be deprived of the companionship a nd contribution of a man whom he or
she has regarded as a father. But once again , this resort to best i nterests is
simplistic. As Kording observes, i n cases of misattributed pater nity the child’s
and putative father’s interests are in fac t fundamental ly consistent insofar as
32 See Seliber (200 7) Wash & Lee JCR & Soc Just 118
33 Jooste v Botha 2000 2 BCLR 187 (T) 206B -G, 207C-E
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both have been harmed by the fa lse belief that created the illusion of biological
pa te rn i ty. 34
Also, it can again be argu ed that the anger and resentment ar ising from being
forced to f ull parental resp onsibilities towards a child who is thought to be
another man’s progeny counts in favour of a court orderi ng the enquiry. Failure
to do so is likely to produce a worse relationship bet ween the putative father
and child than one continue d voluntarily by him on the basis of the t ruth.35
In the YM case Lewis JA failed to recogn ise this when he denied that cou rts
should assist i n establishing the scient ic truth.36 In particular, prohibiting a
paternity en quiry where there is currently a social a nd emotional relationship
with the child does not mean th at this relationship will be pr eserved. A man
who strongly doubts patern ity may be reluctant to continue an emotional bond
with the child and may then abd icate his other parental r esponsibilities. This
may be just as emotionally har mful to the child as having a pater nity enquiry.
Further, there is noth ing stopping a man in such a position f rom harming the
child in any event by disclosing his pater nity doubts.37
By ordering pater nity enquiries , courts resolve doubts and prevent f urther
confusion that will i nevitably impact negatively on the child. Proof th at the
applicant is indeed the biological father is likely to be benecial to continuance
of the relationship with the child. Even con rmation of misattribut ed paternit y
may have positive outcomes. It will place the child in a position to obta in
more accurate knowledge about his or he r real biological origins. And it
then creates oppor tunities to forge a relationship w ith the biological father.
It will also conduce to bette r understanding of paternity genet ics that may be
essential to the child’s health.38 Materially, it could ensure a more r eliable and
consistent source of nancial suppor t. This is because conrmed paternity
renders fat hers more likely to full their parental responsibilities, including
maintenance payments.39
It may be concluded that where doubts about pater nity emerge, cour ts
should generally be open to enter taining applications for paternity enqu iries.
The foundational pri nciple should be that not merely donor conception,
adoption and foster care, but rathe r all forms of non-biological parenthood
should be premised on accur ate knowledge of the absence of a biological
relationship with the child, a nd on a concomitant voluntar y assumption of
parenta l responsibilities.
5 The facts of Nel v Jonker
Jonker was marr ied on 25 February 1989. In June 1990 his wife gave birth
to a daughter, N. On 3 Februar y 1995 the marriage was ended by divorce. As a
34 ND Kording “Lit tle White Lies t hat Destroy Ch ildren’s Lives – Recreat ing Patern ity Fraud Laws to
Protect Chi ldren’s Interests” (200 4) 6 JL & Fam Stud 237 238
35 RK Henr y “The Innocent T hird Party: Vic tims of Paternit y Fraud” (2006) 40 Fam L Q 51 68
36 See YM v LB 2010 6 SA 338 (SCA) paras 14-16
37 This was rec ognised by an Ame rican court in Pa ternity of Cher yl 746 NE2d 488 (Mass 2001)
38 See Cannold (200 8) Women’s Studies Internatio nal Forum 250
39 See Monmouth Co unty Div of Soci al Srvcs VRK 757 A2d 319 (NJ Ct App 2 000) See also Kordi ng (2004)
JL & Fam Stud 2 47
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condition in the divorce order Jonker was re quired to maintain N by, inter alia,
paying R350 per month.40 Between Februar y 1995 and June 2006 he paid to
his ex-wife amounts which totalled R50,050 in respect of mai ntenance for N.41
He stopped maintenance p ayments in June 2006 after N und erwent a paternity
test which proved conclusively that he was not her biological father.42
On 30 July 2007, following an application brought by Jonker, the Western
Cape High Court iss ued an order declaring that he was not the biological father
of N. It gave him prospective relief by discharging him of f uture maintenance
obligations toward her.43 To also obtain retroactive relief, he institut ed action
in the magistrat e’s court for recovery of the R50,050 he had paid towards
maintenance of N.44 The magistr ate found that the maintena nce order was
void ab initio be cause it was founded on mutual er ror.45 Therefore, the order
and the underlying cons ent of Jonker did not found a valid causa on which
N’s mother could rely.46 Jonker’s maintenance reimbu rsement claim was
accordingly upheld.47 His ex-wife then appea led to the Western Cape High
Court.48
6 The reasoning of the High Court in N el v Jonker
The High Court , per Gamble J (Allie J concurri ng), found that the
conclusions reached in the magistrate’s court were “fundamentally awed”.49
The maintenance re quirement included with the d ivorce order had not been
founded on mutual er ror. The respondent (Jonker) had only consented to the
appellant’s claim for a divorce, not to the maintenance order.50 Fur ther, the
magistrate’s nding of voidness in regard to the mai ntenance was beyond
the jurisdiction of that cou rt.51 Therefore, int ervention by the High Cour t
was warranted on ap peal. Gamble J noted that the responde nt alleged in
the magistrate’s court that he paid ma intenance only in the b ona de and
reasonable belief that he was N’s biological father, and as such legally obliged
to maintain her.52 However, “certain cr ucial averments were missing”.53 There
was no allegation of him having en riched the appellant, or of impoverishment
on his side.54 Fur ther, the respondent had not pleaded that h is maintenance
payments had been ma de wrongfully or without just c ause.55 Despite the
absence of such averments, Gamble J found that the r espondent had based his
40 Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 Febru ary 2011) SAFLII para 2
41 Para 3
42 Para 4
43 Para 5
44 Paras 6, 10
45 Par a 14
46 Par a 14
47 Para 6
48 Par a 14
49 Par a 14
50 Par a 14
51 Par a 14
52 Par a 7
53 Par a 37
54 Paras 12, 18
55 Para 12
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claim on the condictio indebit i. The appellant was aware of this. Thus she was
not prejudiced by the respondent’s poor formulation of his claim.56
On whether the respondent ha d established a prima facie case, Gamble J
held that he bore the onus of establishing al l the elements of the enrichment
action. In particular, he had to show sufcient facts to justify excusable error in
paying maintenanc e to the appellant. He also needed to show that the appellant
had been enr iched thereby, and that his estate had bee n impoverished.57 In
applying these requir ements the court held that there had inde ed been an error
of fact. This was either by the par ties jointly or at least the respondent58 who
had, duri ng the course of the marr iage until the pater nity test, believed that
N was his daughter. Such error of fact re ndered payment of the maintena nce
indebite.59
However, on the issue of whether the error in paying the ma intenance was
reasonable and thus excusable, the cour t concluded that it was not.60 Based on
the respondent’s evidence-in-chief, Gamble J opined t hat, had the appellant not
sought an increase i n the child’s maintenance, t he respondent would probably
have continued to honour his obligation unde r the divorce order to maintain N,
without making a ny objection.61 Furthe r, the fact that he took several years
to initiate the pater nity test, des pite coaxing by family member s, suggested
he was “indifferent as t o whether the maintenanc e was due or not, and that it
can be inferre d that he intended to pay the monthly ma intenance whether he
owed it or not”.62
On whether the appellant was en riched, the cour t noted that this was not
pleaded and there was no evidence on t he record which dealt with this.63 The
element of enrichment is centr al to the condictio indebiti. Since the res pondent
based his claim on an equit able doctrine, the onus was on him to show that the
appellant’s estate had been enr iched by the monthly maintenanc e payments
made in respect of N.64 He was also require d to show what the extent of
that enrichme nt was at the time the sum mons was issued in the mag istrate’s
court.65 The resp ondent did not do so, and consequently omitte d to set up a
prima facie case of enrichment of the appellant at t he commencement of the
action.66 Fur thermore, in the absence of any specic evidence by the par ties
on the point, the cour t took the view that the appella nt was not enriched. She
received the maintenance pay ments merely as a conduit for the child, whom
she was bound to support a nd on whom the money was spent.67 Accordingly,
it would not be fair to the appellant to now order her to re store either the entire
56 Par a 39
57 Para 43
58 Para 52
59 Para 54
60 Para 60
61 Par a 61
62 Par a 61
63 Para 64
64 Para 73
65 Par a 71
66 Para 72
67 Para 68
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amount or a part ther eof to the respondent.68 In relation to considerat ions of
public policy, the court held:
“Given the ndings which I have made above, it is not necessary to come to a nal decision on this
aspect of the case. Sufce 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.”69
Similarly to the Supreme Cou rt of Appeal in the YM case, Gamble J thus
in general saw little merit in establishment of the s cientic truth concern ing
pa te rn i ty.
7 A discussion of the High Court’s reasoning
The conclusions reached in Nel v Jon ker raise the issue of whether there are
any circumsta nces in which maintenanc e claims arising from m isattribute d
paternity should be re cognised in South Af rican law. The reasoning of the
court is in some res pects open to question. The conclusion that the respondent
was “indifferent ” and would still have been willi ng to pay the original sum
of maintenance even if he had k nown it was not owed is surely somewhat
articial. It is true there is an argument that , if genetic relatedness is crucial
to a man, he should seek a pater nity test at the earliest possible opportun ity.70
However, in this cas e the respondent did not suspect indelity on t he part of
the appellant at the time of N’s conception. Consideri ng that he was marr ied
to the appellant at the time of N’s birth, he ha d no reason to doubt that he was
N’s father. As Draper has commented:
“All things being equal, it is reasonable for men to suppose that children born within a longstanding
relationship, and perhaps especially a marriage, are children of that relationship, unless they are told
otherwise.”71
Contrary to t he conclusion of the court, testi mony by the respondent
that he had always believed he was the biological father of the child, and
raised her as such with the ap pellant until they divorced, s uggests he was
not indifferent about whether mai ntenance was due or not. In the abs ence
of accurate knowledge of his wife’s sexual history, he believed he was the
biological father and therefore owed maintenance.72 Furthe r, as Gamble J
himself acknowledged, the r espondent’s deferral in seeking a pate rnity test
when it was suggested to him af ter the divorce may be attributed to a concer n
68 Para 74
69 Par a 79
70 See Draper & Ives (20 09) J Soc Welfare Fam Law 412
71 Draper (2007 ) J Med Ethics 476 See also AS Epstein “The Par ent Trap: Should a Man be Allowed to
Recoup Child Sup port Payments i f he Discovers that he i s Not the Biological Father of the C hild?” (2004)
42 Brandeis L J 655 658-659
72 See Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 February 2011) SAFLII para 46 See also Sel iber who
avers:
“A man who acknowledges pa ternity w ithout first de termini ng his part ner’s sexual histor y has an even
stronger clai m to restitution be cause he has not been negl igent at all – he can only kn ow his partner’s
sexual hist ory to the extent that sh e accurately shares it w ith him ” (Seliber (2007) Wash & Lee JCR
& Soc Just 114 )
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that, regardless of its result s, it could destroy his relationship with N.73 In
these circumst ances, empathy should have impelled the cou rt to recognise
the predicament of the respondent. It should have given weight to his desi re
not to cause undue pain to N rat her than relying on a guess about what would
have happened if there had bee n no request to increase the m aintenance. It
should have recognised that ther e is no statute of limitat ions which precludes
a person from challengi ng paternity after a prescr ibed time. In the absence of
such, the respondent was su rely entitled to challenge paternit y only at a stage
where he was entirely convinced of the ne ed.
Aside from the court’s insufcient appreciation of the situation of the
respondent, of concern also a re its two main conclusions on enr ichment. As
will be remembered, it de cided rstly that the respondent had the burden of
proving the extent of the mother’s enrichment at the t ime of summons, and
secondly that she was not enr iched because the money was for her child. In
relation to the r st conclusion, where a man living in a separate household
only discovers long after begi nning to pay mainte nance that he is not the
father it will in practice oft en be di fcult for h im to mee t such a technical
requirement as provi ng the mother’s extent of enrichment at the time of
summons.74 In relation to the sec ond conclusion, to hold that payments by a
non-father in any event do not enrich a mother if she clai ms to have channelled
these to support her child, is a debatable nding. It was not compelled on
the court by any South African author ity. In other Anglo-inuenced system s
the approach is that mainte nance even by a biological father is owed not
directly to the child , but to whoever is a primar y caregiver accommodat ing
the child.75 It is considered th at the other party to the procreation (the mother)
should not be left by a father to carry the nancial burden of caring for the
child alone.76 The accept ed approach is thus that the mat erial relationship
arising from a mai ntenance obligation is prima rily with the mother (or other
primary caregiver).77 A fortiori, the nancial relationship should surely be
viewed as with the mother where payme nts come to her from a man wit h no
biological link to the child. However, in Nel’s case the court took a di fferent
approach. It sidestepped the fact t hat the appellant mother received a di rect
nancial be net which increased her estate. And fur thermore, the pay ments
were contingent upon her deception.
Concerning pate rnity test ing, as has been noted, G amble J expressed the
view that courts ou ght not to facilitate this wher e a putative father has taken
on a paternal fu nction because a negative result would be det rimental to the
child’s constitutional right to family and pa rental care.78 Th is is “result-rst
reasoning” which is unduly pessimistic and not sufciently sensitive to the
dynamics of social bonding. The conclusion of Gamble J that scientic pr oof
73 See Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 February 2011) SAFLII para 60
74 Par a 71
75 See Seliber (200 7) Wash & Lee JCR & Soc Just 9 9
76 See Draper & Ive s (2009) J Soc Welfare Fam Law 40 9
77 409
78 Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 Febr uary 2011) SAFLII para 79
594 STELL LR 2012 3
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of non-paternity is i nevitably antithetical to child ren’s future right to family
care is, as we have argued above, much too nar rowly const rued.
8 Conclusion and recommendation
Sexual unfaithf ulness leadi ng to misattribut ed paternity is by no mea ns
uncommon and medical scienc e is rendering it increa singly easy to discover
the tr uth. The issue of m aintenance repayment is thus a signi cant one, and
one which is likely to arise incr easingly as a concern i n familial litigation in
the future. Applicat ion of the condictio indebiti and pa rticularly the way in
which its requirements were i mplemented in Nel’s case has set an unfortunat e
precedent. It is hard to see how any fut ure misattributed father w ill be able to
obtain nancial relief if the reasoning in the judgment is followed. We h ave
shown above that a blanket refusal to g rant any misattributed fat hers a right to
claim maintenance is u ntenable. It is unfair to them and unlikely in the longer
term to advance t he best interests of the child ren they have supported. If t his
is accepted, the quest ion of how such claims should be regulated in f uture
arises. We recommend that the Mai ntenance Act be extended to provide t he
necessary coverage. Th is would be consistent with the approach taken in othe r
jurisdictions where a r ight to claim rei mbursement of maintenance p ayments
erroneously made has be en statutorily re cognised. For example, in Australia
section 66X of the Family Act, 1975, as amended, protects maintena nce
providers who have, through cour t determi nation, been found not to be
biologically related to a child. It provides them with a clear right to ap ply to
court for the repayme nt of maintena nce paid.
In determi ning whether a misat tributed father who has applied ought to
be reimbursed for mainte nance, we propose that the legislatu re formulate
provisions wh ich will enable courts to adopt a exible approach. Th is will
enable them to address pot ential variations in ne eds of the persons most
affected.79 Some discretion is required so that decisions can be ma de on a
case-by-case basis, having regard to the particular facts and specic needs of
the child and others involved.80 We suggest that the proposed new legislation
should indicate rstly that the par amount factor to be weighed up is the best
interests of the child. But th is should be expressly explicated as requir ing
an assessment of the child’s socio-biological needs, emotional well-being and
the potential for preser ving existing careg iver relationships that have been
construct ive. Other fa ctors that should be included in the proposed guideli nes
are the putative father’s need for justice and fair ness, and society’s socio-
biological expectations regarding pat ernity deter minations, f raud, families
and fatherhood.81
We further propose inclusion of the following sub- criteria to help courts in
arriving at a ju st and equitable solution where claims for reimbur sement are
instituted by d isestablished fathers:
79 This propos al is adapted fro m one suggested by Epst ein (2004) Brandeis L J 669-670
80 As has been note d, it was conceded by the S CA in YM v LB 2010 6 SA 338 (SCA) that some discretion is
essential Se e YM v LB 2010 6 SA 338 (SCA) paras 15-16
81 See Kording (20 04) JL & Fam Stud 239
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• The best interests of the c hild. If there is currently a st rong social bond
between the misat tributed father and t he child this should weigh in
favour of ordering maintena nce reimbursement.82
• The nancial circum stances. What will be the short-ter m nancial
impact of reimbursement on t he child? Will it seriously detract f rom the
quality of life of the child, or can t he maintenance recipient (usually, the
mother) afford to refund some or all of the maint enance? Is it reasonably
likely that the mother can recover an e quivalent sum from the biological
father?
• Fraud/deceit by the mother. Did the mother knowi ngly pass off the child
as that of the putative father? Was she in possession of medical proof and
did she at any stage lie to the putative father? For how long was the deceit
maintained?
• Lack of due diligence by the father. Did the putative father delay
unreasonably in see king a remedy? Did he know or should he have
known or reasonably suspe cted that he was not the biological father long
before he instituted act ion?83
It will be of crucial impor tance for the proposed legislation to i ndicate
clearly that it contains all of the requ irements for a reimburseme nt award.
There should be no suggestion of additional a pplicability of technical
requirements f rom ancient remedies intended for dif ferent purposes, s uch as
the condictio indebiti. I n addition to having these guidelines available, cour ts
should be encouraged to order any nec essary paternity t esting before applying
them. As we have contended, rather t han viewing establishment of the tr uth in
a negative light, courts should appreciate that condence concerning the tr uth
about paternity pr ovides a healthy foundation for ongoing relationships with
children. It is impor tant to note that recent adva nces in medical technology
have rendered testing much simpler and less i ntr usive than it was i n the past.
Fathers can now purchase simple “do-it-yourself” kit s which require nothing
more than a strand of the ch ild’s hair.84 In view of this, we recommend that i n
misattribut ed paternity litigation cour ts should be able to apply a presumption
of non-paternity where a relevant fa mily member refuses to obey a cour t order
to hand over the necessar y DNA mater ial.85
In giving nal consideration to whether misattr ibuted paternity is an area
now requiring legislative inter vention, it should be noted that claims do not
82 We recommend thi s because it is pa rticularly i mportan t not to create a sen se of injustice th at could
alienate the f ather figure i n these circums tances
83 These crite ria have been adapt ed from a proposal by E pstein (2004) Brande is LJ 669-670
84 In South Afr ica, Patern ity Test DNA Home Collectio n Kits are avail able through co mpanies lik e DNATest
GENEDiagnostics genediagnostics coza/?gclid=CJeamr7A-rACFRMgtAodmVZGiA>
(access ed 03-07-2 012)
85 S 37 of the Children’s Act alr eady allows a cour t to discount the credibil ity of any person who “has
refused to su bmit himself or herself , or the child, to the tak ing of a blood sample in order to car ry out
scientific t ests relating to the pa ternity of the child ” For referen ces to commentators w ho have debated
the constit utionality of courts o rdering mandator y blood or tissue tests for the pu rpose of establishin g
paternit y see J Heaton “ Parental Re sponsibil ities and Rig hts” in CJ Davel & A M Skelton (eds) Commentary
on the Children’s Act (RS 3 2011) 3-40 N1 The much less i ntrusive nature of t he latest testing met hods
may be said to weake n the constituti onal argument ag ainst such cour t orders
596 STELL LR 2012 3
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only arise afte r a party disputes pater nity and then approaches a court t o order
paternity te sts. Misattr ibuted paternit y may also be inadvertently pr oved
during medical t reatment. This may hap pen, for example, when a child is
discovered to h ave some genetic condition, or blood g roups are identied
and/or tissue matches are req uired for the child’s or other family member’s
medical treatment.86 With t he ongoing improvement of medical technology
and availability of its benets, thes e discoveries will become increasingly
more common. As we have shown, the near imp ossibility of a successful
claim for maintenance reimbu rsement initiated by the Nel judgment produce s
a danger of alienating even good father gures who have shown responsibility
in the past. This is su rely not in line with the oppor tunities for conti nuing to
exercise parental responsibil ities created in the Chi ldren’s Act. A negative
response to establishing the scientic truth about paternity and denial of
all maintenance rei mbursement claims are not i n the best interests of either
children or misatt ributed fathers. T herefore, legislative intervention is now
required.
SUMMA RY
A man who paid mai ntenance because of a false b elief that he was a child’s biological father m ay
wish to reclaim t he amounts paid once he d iscovers the trut h. In the current S outh African legisl ation
there is no guid ance on whether such claims a re actionable. Prior to Nel v Jon ker (A653/2009) 2011
ZAWCHC 5 (17 Febru ary 2011) there was also no repor ted case authorit y. In this matter Ga mble J held
that mainte nance reimbu rsement claim s are valid where th e requiremen ts of the condictio indebiti
can be met. In th is article we provide an evalu ation of his judgment. We show that th e application of
the condictio indebiti as re quired in Nel makes it very di fcult for mis attributed fathers to s ucceed.
This difcu lty is compounded by a position take n in several South African ca ses that it is better not to
jeopardise ex isting father-chi ld relationships by orde ring patern ity testing. Draw ing on developments
elsewhere, we conte nd that in many ins tances the risk of h arming such rela tionships is in fac t lessened
where court s facilitate di scovery of the tru th and then order ma intenance repa yments. We suggest that
the position est ablished in Nel is i nappropriat e because it rende rs it almost impos sible for misattr ibuted
fathers to suc ceed with mai ntenance rei mbursement clai ms. With do-it-your self patern ity test kits
becoming les s expensive and less in trusive, misat tributed pat ernity disp utes will become i ncreasingly
more frequent . We therefor e propose that in the inter ests of both misattrib uted fathers and childre n
the legislatu re should interven e. It should do so by allowing expr essly for reclamation of mai ntenance
erroneously p aid, and by setting re quirements which ar e practicable. We suggest some g uidelines for
such legislation , and also discu ss what factors sho uld be considered b y courts when d isestablished
fathers seek reimbursement.
86 See Draper (200 7) J Med Ethics 475
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