Paternity disputes

How and why to determine paternity 

When a woman gives birth, she knows the child is hers. However, the father has no such certainty. If the couple is in a loving and apparently monogamous relationship, the man can be fairly sure the baby is his. There is a theory in evolutionary psychology called “paternity certainty” that suggests monogamous pair bonding evolved to ensure the child enjoying the father’s attention was in fact his. Female sexual fidelity was required to guarantee paternity. (This theory is widely held but also hotly contested, by the way.) But what happens if the woman has been intimate with more than one man at the time of falling pregnant? In this case she may want to know the identity of the father, or the men involved may want to know. The film Bridget Jones’s Baby is all about this scenario. Furthermore, the child, as they mature, may demand to know the identity of their father. 

The reason for a paternity dispute may be a maintenance claim, parental rights dispute, citizenship issue or inheritance matter but most often it simply reflects the desire to know one’s children or the parentage of one’s children. A man may want to know a child is his, while the mother claims it is not; or a mother may assert a man is the father of her child while the man disputes the paternity. This commonly happens when maintenance is at stake. Whatever the motivation, a paternity dispute is always emotionally charged. 

What is a paternity test?

A paternity test scientifically establishes the biological relationship between a father and child. When paternity tests were first performed, in the middle of the 20th century, they were conducted via blood tests. Blood types were compared. While blood typing could rule a man out, it was not a reliable means of testing paternity, as there are two few blood types for a truly individual analysis. In the 70s a more accurate blood test was introduced, comparing white blood cell antigens. 

Today paternity is determined by DNA test, which can be carried out on a tissue sample from a simple cheek swab. The DNA of the child is compared to that of the potential father. If the DNA patterns match, the likelihood of paternity is 99.9%. Blood can also be used, but is no more reliable than the cheek swab, meaning a DNA test is now minimally invasive and completely painless.

The Children’s Act sections covering paternity 

DNA tests can be conducted at any age, and it is not unheard of for an adult child to seek information on paternity, but the relevant laws are contained in the Children’s Act 38 of 2005 and landmark court matters that have influenced their interpretation. The law seeks to strike a balance between the pursuit of truth, the protection of privacy, and the best interests of the child.

Section 21, Parental Responsibilities and Rights of Unmarried Fathers, outlines the conditions under which an unmarried father can obtain parental rights and responsibilities. This includes living with the mother in a permanent life partnership at the time of birth, consenting to be identified as the father, or contributing to the upbringing and maintenance of the child. This section ensures unmarried fathers have a way to establish legal ties with their children, provided paternity is confirmed.

Section 26, Person Claiming Paternity, allows a person claiming to be the biological father of a child to apply to amend the child’s birth certificate. This is done either with the mother’s consent or through a court order (typically when the mother refuses, is deceased, is considered incompetent or cannot be found). This section formalises paternity in official records.

Section 36, Presumption of Paternity, presumes that a person who had sexual intercourse with the mother of a child at the time the child was conceived, or could have been conceived, is the biological father, unless there is evidence to the contrary. This places the onus on the alleged father to disprove his paternity if he contests its likelihood.

Section 37, Refusal to Submit to Scientific Tests, states that if a parent in a paternity dispute refuses to submit to a paternity test, or refuses to allow the child to undergo the test, the court must warn them of the challenge to their credibility this creates. This section encourages cooperation and fact finding.

Together, these sections form the foundation of the law’s approach to paternity disputes, emphasising the best interests of the child. Several cases have since clarified how the courts apply these sections in practice. 

Case – infidelity

YM v LB (2008) (High Court) followed by (2010) (Supreme Court of Appeal) concerns a father who expressed doubts over paternity of his child due to the mother’s infidelity.

The High Court received an application from LB for a DNA test to confirm whether Y was his biological child. The mother, YM, refused to test the child, seeing it as invasive and unnecessary. The Court ordered the child to undergo testing within 30 days, citing its inherent jurisdiction to order these tests, especially when paternity is uncertain. In this case, the mother had been intimate with another man around the time of conception. The Court balanced the child’s best interests with the need for clarity. 

This decision was overturned by the Supreme Court of Appeal, which ruled the test was unnecessary as paternity was established on a balance of probabilities. The court found scientific confirmation was not required as YB had acknowledged his paternity through his conduct, i.e., making payments to the mother during pregnancy. The Court stated that section 37 allows scientific tests but does not mandate them when other factors are met, thereby setting a precedent to avoid invasive tests unless paternity is genuinely uncertain.

Case – posthumous paternity determination

ZM and Another v AF and Others concerns the determination of paternity of a deceased man.

The applicants in this case sought DNA testing to determine whether the respondents were in fact the biological children of the deceased man. The respondents agreed to test but were insistent on exhuming the deceased’s body. The Court rejected this as drastic and cited public policy and moral concerns. Instead it ordered DNA testing of the living parties. This decision reflects the judiciary’s role as the upper guardian of children by ensuring decisions are in their best interests.

Where to get a paternity test

Paternity tests are readily available through the National Health Laboratory Service and private laboratories. Both the child (or mother on their behalf) and the alleged father must consent to the test. 

Cape Town family lawyer can help

SD Law is a firm of attorneys in Cape Town, Johannesburg and Durban, who are experienced in family law. Whether you are a mother, father or grown-up child, if you need to prove or disprove paternity, we can help. Call family lawyer Simon Dippenaar on 086 0995146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Unmarried father – know your rights
• In the name of the father
• Children’s Amendment Bill
• Section 10 of Births & Deaths Registration Act declared unconstitutional

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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