According to South African law, the man who you say is the father of your child is regarded as such until a paternity test shows otherwise. If the man alleges that he is not the father of your child, he must prove this by way of a paternity test. Until he can prove otherwise, the court will presume that he is the father. Furthermore, if you have a child with someone other than your husband, that child will still be deemed your husband’s until proven otherwise. In law this is called the pater est quem nuptiae demonstrant-presumption, which literally means that marriage indicates paternity.
According to South African law, the man who you say is the father of your child is regarded as such until a paternity test shows otherwise. If the man alleges that he is not the father of your child, he must prove this by way of a paternity test. Until he can prove otherwise, the court will presume that he is the father. Furthermore, if you have a child with someone other than your husband, that child will still be deemed your husband’s until proven otherwise. In law this is called the pater est quem nuptiae demonstrant-presumption, which literally means that marriage indicates paternity. Your husband will be regarded as the father of your children for all purposes, until he can prove otherwise by way of a paternity test.
Tests that courts accept to prove paternity
There are several tests to prove paternity, of which some are more reliable than other. Courts have accepted three types of blood tests in cases regarding paternity.
Analysing the red blood cells
This is the oldest test of the three and is based on analysing the red blood cells of the child, the mother and the alleged father. By identifying the blood type of each individual, it is possible to establish when the man cannot be the father of the child, as parents which belong to a certain blood type, can only conceive children which fall within a restricted number of blood types. This test can however not determine that the man is indeed the father. It can only determine when it is impossible for him to be the father. It is the cheapest, but also the least reliable test of the three.
Analysing the white blood cells
This test is based on analysing the white blood cells of the child, his mother as well as the alleged father’s in order to determine whether the child inherited one haploid of each. With this test it is possible to identify the man as the father of the child. This test has an accuracy of more or less 99,9%. It is more expensive than analysing the red blood cells, but cheaper than a DNA test.
The DNA test
Descendants inherit the DNA patterns of their parents. With this test, you are able to distinguish the DNA that was inherited from the child’s mother, from that which was inherited from the father. You can thus determine with certainty whether the man is the father of the child.
How to get it done
You can apply to court if you want someone ordered to submit himself to a paternity test. The court will consider your application and make an order to this effect. Because you are the applicant and the one that wants the test to be done, you would normally also pay for it.
Where to take the test
You can make an appointment at a clinic for this test to be done. They will also tell you what you can expect and what the costs will be. Get an appointment that will also suit the man involved, so that you are sure that he will show up. If he refuses to take the test, you must approach the court again in order for him to be forced to submit himself.
A court’s power to force you to take the test
There do exist some different opinions regarding the court’s competence to force someone to submit himself or the child to conducting the test. Some people feel that this infringes one’s Constitutional right to bodily integrity, and can almost amount to assault.
The fact of the matter is that a court does have the power to force someone to submit himself to conducting the test. A court will never order this where someone has an acceptable reason for his refusal, for example when it is against a person’s religious beliefs to take a blood sample or when he refuses for medical reasons.
The High court is the upper guardian of all minor children. A parent may thus be ordered to submit a child to testing. The child’s best interests is however paramount. The High court will never give an order that is contrary to the child’s best interests.
Presumption when someone refuses to take the test
The Children’s Status Act provides for a rebuttable presumption where someone refuses to submit himself or the child to be tested. In such a case, a court is allowed to draw a negative conclusion. It will be presumed, until proven otherwise, that the person who refuses to submit himself to testing, wants to conceal the truth regarding paternity. It is thus best to allow the test to be conducted in order to avoid being suspected of concealing the truth and the court drawing a negative conclusion.
By Adv Marilize Nagtegaal for HerLaw
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