Paternity Disputes and Scientific DNA Testing – Children Matters (Maintenance and Custody)

Paternity Disputes and Testing and the law

Paternity disputes and Scientific DNA Testing in Child Legal Matters

Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing.


Paternity – Legal Settings

There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity.

Paternity Dispute Scenarios

There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post.  Read on to learn more. You may learn something new.


The legal presumption of pater est quem nuptiae demonstrant

Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father.

Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes it, they must prove it. This may become an issue during divorce proceedings. The wife may allege that the husband is the father of the child and claim maintenance from him. He would then in his plea state that he is not the father and accordingly not responsible to pay child support. At the divorce trial, he would have to prove that he is not the father. A simple way of resolving the dispute would be through a blood test or scientific DNA testing.

Now let’s move on to written law, in legislation and learn some more.


The Law on paternity disputes in relation to minor children

There are two pieces of legislation that applies in relation to paternity issues regarding minor children. It is the Maintenance Act 99 of 1998, in relation to child maintenance matters, and the Children’s Act 38 of 2005, in relation to child legal matters in general. We shall, however, start with the Children’s Act 38 of 2005.


The Children’s Act – Paternity Disputes

The Children’s Act has two (2) sections dealing with paternity issues. The first deals with the Presumption of paternity in respect of a child born out of wedlock and the other, the refusal to submit to the taking of blood samples. We quote them next.

Section 36: Presumption of paternity in respect of a child born out of wedlock

“If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.”

Section 37: Refusal to submit to the taking of blood samples

“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.”

Create Reasonable Doubt

Looking at the aforementioned sections of the Children’s Act, in a paternity dispute, it is presumed that if parties had sexual intercourse at any time when that child could have been conceived, the male is the father. The father can disprove this by raising reasonable doubt. This can be done by proving that he was sterile, or through scientific DNA testing. If another man comes and says he is the father; we are sure some reasonable doubt may be created.

According to the next section in the Children’s Act, if a party refuses to submit to a paternity test, it could affect his or her credibility. Therefore, if someone is truly a parent, or not a parent, and has nothing to fear from the truth, he or she should submit themselves to a blood test. Failing which, it might affect that person’s credibility in the matter. The court could then infer that he or she is lying. Now let’s move on to the Maintenance Act in child maintenance matters.



The Maintenance Act – Paternity Disputes

In our experience, it is the offices of the maintenance courts that deals mostly with paternity disputes. When the father gets called to the maintenance court, to pay child support for a child he does not have a relationship with, in some cases, he would invoke the paternity defence. In other words, he would dispute the paternity of the child. In such a case, he would request a paternity test.

Section 21 of the Maintenance Act deals with orders relating to scientific tests regarding paternity. Here we quote the relevant section next.

21 Orders relating to scientific tests regarding paternity

(1) If the maintenance officer is of the opinion-
(a) that the paternity of any child is in dispute;(b) that the mother of such child, as well as the person who is allegedly the father of such child, are prepared to submit themselves as well as such child, if the mother has parental authority over the said child, to the taking of blood samples in order to carry out scientific tests regarding the paternity of that child; and

(c) that such mother or such person or both such mother and such person are unable to pay the costs involved in the carrying out of such scientific tests,
the maintenance officer may at any time during the enquiry in question, but before the maintenance court makes any order under section 16, request the maintenance court to hold an enquiry referred to in subsection (2).
(2) If the maintenance officer so requests, the maintenance court may in a summary manner enquire into-
(a) the means of the mother of the child as well as the person who is allegedly the father of the child; and
(b) the other circumstances which should in the opinion of the maintenance court be taken into consideration.
(3) At the conclusion of the enquiry referred to in subsection (2), the maintenance court may-
(a) make such provisional order as the maintenance court may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or
(b) make no order.
(4) When the maintenance court subsequently makes any order under section 16, the maintenance court may-
(a) make an order confirming the provisional order referred to in subsection (3) (a); or
(b) set aside such provisional order or substitute therefor any order which the maintenance court may consider just relating to the payment of the costs involved in the carrying out of the scientific tests in question.

Costs of Scientific DNA Testing in Child Maintenance Matters

Looking at the aforementioned section, it does not say much about the evidentiary aspect of paternity testing. It basically deals with the costs thereof. However, what is clear is that the Maintenance Court considers issues of paternity disputes and deals with it. Nonetheless, the aforementioned provisions of the Children’s Act would apply to matters in the Maintenance Court. Next, we move on to the issue of whether or not a court can force a party to submit to a paternity test.

Forced or Compelled Paternity Tests

The two pieces of legislation referred to above does not assist us much with regard to the issue of a court forcing a parent to submit to a paternity test. We now need to consider the case law. In other words, what do the courts have to say about this?

Most of the older court decisions, do not agree with forcing a parent to submit to a blood/paternity test. However, it seems that things have changed in the past decade. Let us refer to the judgment of LB v YD 2009 (5) SA 463 (T), a Transvaal Provincial Division matter handed down by Judge Murphy less than 10 years ago.


LB v YD 2009 (5) SA 463 (T).

One of the issues, in this case, was that the mother did not want to submit herself to a blood test. Her view, amongst other things, was that it was not in the child’s best interests. The father argued that it was his right to know whether or not he is the father of the child. He further argued that his right to the certainty of paternity outweighs any inconvenience that might be suffered by the mother and the child.

With regard to the law, the Court stated the following:

[18] The law on the topic of compulsory blood or DNA testing in parental disputes is not satisfactory. There is no legislation which specifically regulates the position in civil cases. Judicial pronouncements on the topic have not been unanimous in their approach to the issues and have differed on the proper legal basis for ordering tests. In relation to the child the courts have relied on their inherent jurisdiction as upper guardian, while in relation to the non-consenting adult some judges have invoked the inherent jurisdiction of a court to regulate its own procedures while others have refused to do so. In all cases the courts have been mindful of the need on the one hand to protect the privacy and bodily integrity of those to be subjected to tests, but on the other hand have asserted the court’s role to discover the truth whenever possible and to make use of scientific methods for that purpose.


[23] In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of truth should prevail over the idea that the rights of privacy and bodily integrity should be respected – see Kemp ‘Proof of Paternity: Consent or Compulsion’ (1986) 49 THRHR 271 at 279 – 81. I also take the position, and I will return to this more fully later, that it will most often be in the best interests of a child to have any doubts about true paternity resolved  and put beyond doubt by the best available evidence.



[47] The present case is one in which a clearing of the air is called for. Both parties have at various times admitted and denied that the applicant is the biological father. The respondent was intimate with a second party, her husband, within the period of possible conception. The child is barely 1 year old and thus there is no established relationship that might be unduly disturbed or harmed by a determination of non-paternity. If  the applicant is established to be the father, the child will benefit in time from knowing the truth and from the applicant’s commitment to her financial wellbeing. The possible stigma of a disputed paternity will also be removed. And, furthermore, legislative safeguards exist for the assignment and monitoring of appropriate parental rights and responsibilities to the applicant, should that prove permissible. I accordingly  consider that it will be in the best interests of the child that paternity be scientifically determined and resolved at this early stage.


[48] I agree that the order sought by the applicant is the one that should be granted. It is ordered as follows:

  1. The respondent is ordered to submit herself and her minor child Y to DNA tests for the purpose of determining whether the applicant is the biological father of the child Y within 30 days of this order.
  2. Prayers 2 and 3 of the notice of motion are postponed sine die.
  3. The applicant is ordered to pay the costs of the tests referred to in D para 1 of this order.
  4. The costs of this application are reserved.


The numbers in the square brackets denote the number of the paragraph you would find it in the judgment should you decide to make use of it.

We agree with Judge Murphy. It is clear that the Courts can and should compel parents and children to submit to a blood test/DNA test when it is in the child’s best interests. Each case is different, and whereby a compelled blood test/DNA test would be warranted in one scenario, it may not be in the other. Nonetheless, with modern technology at our disposal, a simple paternity test is currently less intrusive than it was in the past.







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41 thoughts on “Paternity Disputes and Scientific DNA Testing – Children Matters (Maintenance and Custody)

  1. Good day

    I dated a lady for a year and discontinue dating,after a year she called me and tell me that is my son,After 12 years she open a case for maintenance.So if I want DNA test whos going to pay it because am not sure that is my son

  2. Good day i am currently paying maintenance of a child i beilive is not mine and would like to appeal to get a dna test, also missed attening court fo increase of the money i pay. Please advise me on what to do going foward

  3. Good day

    Please advise on the best way forward for us. My son has been taking care of his daughter since before the birth. She lived with him for 9 months until her mother decided to take her back to KZN and deny him access to her. There has been doubts on the paternity as the mother had multiple partners at the time. Now that the mother is denying him access to the child do we approach an attorney or go to family court to do the paternity test?

  4. Can you as an adult sue your father for paternity test who staying in another country?

  5. We did the DNA and they came back positive and the father asked for second test and I do not have a problem the issue is travelling costs who must cover those ??Magistrate ordered an interdict for the father to pay every month and I asked him to send the money so I can travel with the child to the second test but he’s refusing.

  6. I am the father of the child and her mother is from eSwatini.we did a paternity test and the results came said unexpected.l know that this is my daughter because when she was 1 day she was crying uncontrollable and she wasn’t going to the toilet and we consulted sangoma and she was crying for ancestors name ,we did all was wanted and the child is ok .so what must I do to register the child at home affairs . I think my child is deprived her rights

  7. We went for DNA testing december, between father and child which came out negative. The mother went to file for maintenance without letting the court know that a test was already done, we went to court and now they say another test must be conducted, they want blood tests instead of swabs, is this fair? I also want to know how do we claim our money back from that lady when the results come back negative, transport money in particular?

  8. Hi,

    What if i am the wife, my husband has a child with a woman, which i know of and excepted without dna tests, now she had another baby, and her mother told my husband she does not know who the father is, because there were multiple males visiting her, she is adamant that its my husbands child, when he keeps on saying it is not, so now her parents and siblings swayed and want my husband to take responsibility for this child which he is saying is not, so do i as the wife have a right to ask for a dna test as i will not except this child in my marriage , i am willing to support the child if it is his, but i want a dna test which the mother does not want, we are now being emotionally abused, she wants an additional R1600 for this child, everywhere we go, we are being told that we cannot support, my husband his siblings is too scared to fetch or visit the other child because the baby is being forced onto him but they refuse a dna test.

    Please advise what are we to do…

  9. Good day ive been staying with my patner for 3 years had 2 miscarriages im currently pregnant and about to give birth in the next couple of weeks. He left me when i was 6 month pregnant currently staying with another woman, all along he agreed that it’s his child now he is demanding dna test and he hasnt done anything for me or the baby through out till now. And i will to give him the dna test as per required.
    My questio is should it say it’s his baby and he wasn’t present i did everything throughout my pregnancy what are the damages that he need to pay or do for putting me and the baby in hell.

  10. Hi , my dad passed on 3 years ago and all children of his received their inheritance, but im told they need dna to release my portion since im a child not in marriage of the deceased, the wife issued a dispute that she needs dna so the money can be released. Its been 3 years now no one in the family including the wife demands to help in dna tests. The wife claim she doesn’t know me after my father passed on. Please advice me on that.

    1. Good day
      It may be best to speak to the Master about the issue. If that does not help, then approaching the court would be applicable. The court can then force the relevant parties to submit to a DNA test to verify you as an heir.

  11. I’ve been with the father of my son for three years
    My son goes by his surname
    He knows that it’s his child but because things didn’t work out between use his refusing to pay maintenance ND claiming that it’s not his child he wants DNA tests yet we both know that his the father of my son

  12. Hey im _________ i want to do DNA test the problem is that i dont have money
    the mother has agreed to do a DNA so that i can be sure and start supporting the child
    i want to be a part of the child life but im not sure if she my daugher or not

  13. Can the father of the baby demand second texts. After he did results and the results were given to him.. Can’t the first result be retrieve.

  14. As an alleged father of the child or respondent; do the court allow me to see or look at the test results or i will only be told by the court about the outcome without having any evidence or proof of the results. I was the one paying for the test not the court of law and i have a receipt Should the magistrate instruct me to keep on supporting the child cos the results were positive reading 99.9 % but I AM NOT ALLOWED TO SEE OR HAVE A COPPY.

  15. is it possible to pay for a child maintenance while still waiting for the dna test results to prove if you are a father of the new born or not . Should the results be negative , how and who will be liable to pay back the money i have already paid.The child is 3 months old and I was ordered by the court to pay a certain amount up until the outcome of the results Have began to support the child when she was a day old. Out of wedlock and the mother of the child carried the pregnancy for 11.5 months and taken me to the maintenance court in three days after her birth. Is the maintenance law of SA correct or does it need to be rebuild

  16. What happens if the father want to do DNA private is it advisable for the mother to agree or not?.
    The baby daddy won a similar case with another woman before.

  17. Hi. I’m in a complicated situation. I have an alleged father who consistently makes me have doubts if he is my biological despite my relatives testifying that he is. He was never present in my life and never married to my mother. So I suggested paternity testing which I am willing to pay for, however he doesn’t want to do it because according to him he is sure that I’m his, but constantly reflects on how he did not trust my late mother. I just want to find out if there is a legal route I can take to force him to conduct this test. I don’t need maintenance or anything from him. I just want to clear the air and be solid sure that he is or not my biological father.

    1. Good day
      We suggest you get hold of an attorney to contact him to agree on a paternity test. If he does not want to agree, the attorney can look into the possibility and legally of getting a court order.

  18. Who would have to pay for the tests if the mother has multiple options of who the father could be but has been receiving payments for the child from one of the possible fathers without proof.

  19. What if I’m doing anything for there baby to fine out is not my child. So I would like you to email information so that we can read both and understand

  20. What if I’m paying maintenance and I was never sure, but did it for the child’s sake. .

  21. Do i need the mother permission to do a DNA test between me and son? Even though the Son stays with me?

  22. Where is the paternity test done? And who orders it? Won’t the judge have to determine if such a paternity test is allowed.

  23. What happens if you don’t trust that the given results are true. Can you appeal and do another test in private and bring the result to court.

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