YM v LB

• Jurisdiction: South Africa
• Judge: Harms DP, Lewis JA, Ponnan JA, Ebrahim AJA and Pillay AJA
• Judgment Date: 16 September 2010
• Docket Number: 465/09
• Hearing Date: 08 September 2010
• Counsel: KI Foulkes-Jones SC for the appellant. No appearances for the respondent.
• Court: Supreme Court of Appeal

Lewis JA (Harms DP, Ponnan JA, Ebrahim AJA and Pillay AJA concurring): C

[1] The appellant, Mrs YM (M), appeals against an order that she and her daughter, Y, submit to DNA testing to determine whether Mr LB (B), the respondent, is the biological father of Y. The order was sought by B who claimed, if the tests proved that he was indeed the father, in addition that he be given full parenting rights. The High Court ordered D that M submit herself and Y to DNA tests within 30 days of the order and postponed the other relief sought sine die. The appeal against the order is with the leave of this court. On appeal B did not file heads of argument, nor was there any appearance for him.

[2] Murphy J in the High Court considered in considerable depth the E cases - often in conflict with one another - that have dealt with orders to submit to blood tests to determine paternity. These, and cases in other countries dealing with orders to submit to scientific testing to determine paternity, were also discussed at length by Didcott J in Seetal v Pravitha and Another NO. [1] The High Court also considered the possible changes wrought by the provisions of the Children's Act 38 of 2005. The F judgment of Murphy J is reported. [2] I do not propose to traverse the same material because it is not warranted on the facts. I shall revert to the principles on which the order was made, but shall first set out the facts which were largely not in dispute.

[3] M and B commenced a sexual relationship in February 2006. They G started living together in October of that year and became engaged in November. B told M at the end of the year that he would be going to work first elsewhere in the country, and then abroad, for a short period the following year. Accordingly, in March 2007 she went to stay for what was thought to be the period of his absence in Musina, where her parents lived. H

[4] In fact, B did not go abroad. He frequently phoned her - on her version, under the influence of alcohol - and she became disillusioned with the relationship. She alleged that before she had moved to Musina he also drank heavily and returned home inebriated late at night. I

Lewis JA

A [5] Late in March 2007 M discovered that she was pregnant. She was certain that B was the father and alleged that it was not actually ever in issue, save for one occasion when he denied paternity when speaking to her over the phone one night - apparently under the influence of alcohol. But he retracted the denial...