D v M and Others (30619/2015) [2015] ZAGPJHC 288 (11 December 2015)

D v M and Others (30619/2015) [2015] ZAGPJHC 288 (11 December 2015)

The court found that the applicant, as executrix of SD's estate, had sufficient interest and locus standi to bring the application to determine the rightful beneficiary of the death benefit. The applicant's failure to state her executrix status in the founding affidavit was not fatal, as she was appointed before launching the application and had communicated this to the pension fund. The court held that DNA testing could establish paternity without exhuming SD's body, based on expert evidence. The first respondent's denials were bald and not genuine, and she failed to seek cross-examination. The court determined that the relatively minor infringement of privacy rights was outweighed by...

Citation
[2015] ZAGPJHC 288
Parties
Applicant: D; Respondent: M; Respondent: M in her capacity as mother and guardian of Z; Respondent: Setshaba Pension Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 December 2015
Case Number
30619/2015
Procedural Posture
Urgent Application / Final Order Application (part B) Following Interim Interdict (part A)
Outcome
Application granted. The first respondent and her minor son are ordered to submit to DNA testing. Costs awarded to the applicant.
Judges
Canca
Legal Topics
Disputed Paternity, Dna Testing, Locus Standi, Best Interests of Child, Hearsay Evidence, Privacy Rights
Family and Children Civil Procedure Disputed Paternity Dna Testing Locus Standi Best Interests of Child Hearsay Evidence Privacy Rights

Case Brief

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Parties

D

Applicant

M

Respondent

M in her capacity as mother and guardian of Z

Respondent

Setshaba Pension Fund

Respondent

Procedural Posture

Urgent Application / Final Order Application (part B) Following Interim Interdict (part A)

Legal Issues

  1. 1 Whether the executrix of a deceased estate has locus standi to compel DNA testing of a minor and his mother to determine paternity for pension fund benefits.
  2. 2 Whether the court can order DNA tests where only one parent is alive and the mother refuses to cooperate.
  3. 3 Whether paternity can be proved without access to the body of the alleged father.

Ratio Decidendi

The court found that the applicant, as executrix of SD's estate, had sufficient interest and locus standi to bring the application to determine the rightful beneficiary of the death benefit. The applicant's failure to state her executrix status in the founding affidavit was not fatal, as she was appointed before launching the application and had communicated this to the pension fund. The court held that DNA testing could establish paternity without exhuming SD's body, based on expert evidence. The first respondent's denials were bald and not genuine, and she failed to seek cross-examination. The court determined that the relatively minor infringement of privacy rights was outweighed by...

Court Disposition

Application granted. The first respondent and her minor son are ordered to submit to DNA testing. Costs awarded to the applicant.

Orders

  • The first respondent is ordered to submit herself and her minor son, Z, to DNA tests for the purpose of determining whether the late SD is the biological father of Z within 30 days of the judgment date, as arranged with the applicant's attorneys.
  • The DNA tests shall be conducted by a suitably qualified official in the employ of the National Health Laboratory Services, Johannesburg or at a similar facility.