IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 22/2011
In the matter between:
BENITA PAIVA APPELLANT
And
IVAN JAMES GROENING RESPONDENT
CORAM : DR. S. TWUM, JA
I.G. FARLAM, JA
M.C.B. MAPHALALA, JA
FOR APPELLANT : S.P. MAMBA
FOR RESPONDENT : S.B. SHONGWE
SUMMARY
Law of persons ? whether alleged father of child entitled to have test done on child to establish whether he was the father.
JUDGMENT
_____________________________________________________________
FARLAM, JA
[1] This is an appeal from a judgment given by Mabuza J, sitting in the High Court, in which the learned judge made the following order:
‘(T)he application for review succeeds and the order of the court a quo is hereby set aside with costs. The first respondent [the present appellant] is at liberty to re-launch a fresh application wherein all relevant issues are properly pleaded and ventilated’
[2] The appellant’s first ground of appeal is based on the fact that the case before the court a quo was an appeal against a decision of the magistrate sitting in the Manzini magistrate’s Court. An application for review of that decision had been launched but it was not ripe for hearing as the magistrate and the applicant before the magistrate had not yet filed replying affidavits.
[3] In the circumstances it is clear that the judgment in the court a quo cannot stand and must be set aside. What has to be considered therefore is the appeal which was argued before the court a quo but on which it did not give a judgment.
[4] The present appellant brought an application in the magistrate’s court for an order directing the present respondent to make her minor child, Roberto Manuel Paiva Groening, available to the appellant on 21 May 2010 at his, the appellant’s, home so that paternity tests could be conducted on the child in order to ascertain whether the child, who at that stage was ten years old, was the son of the appellant.
[5] The appellant’s founding affidavit was not drafted as clearly as it might have been. He said that from shortly after the child was born the respondent had said that he was the child’s father. He said that he was uncertain as to whether this was correct, hence his request for the child to be made available for a paternity test. The respondent had refused his request.
[6] He stated that he had the right to know whether he was the child’s father and said that the child equally had the right to know who his father is.
[7] In her answering affidavit the respondent denied that the appellant was the father of her child or that she had even claimed he was. She accordingly prayed for the dismissal of the application.
[8] The appellant then filed a replying affidavit in which he stated, among other things, that when the child’s birth was registered he was reflected as the father and the respondent as the mother and informant. He went on to say that ten years later the respondent had a new birth certificate issued in respect of the child with the particulars in respect of the father blank but the child’s name still reflected as Paiva-Groening. He annexed copies of these two birth certificates. He also said that he has been maintaining the child since birth, and depositing money on a monthly basis in his bank account.
[9] In granting the application the magistrate said that (t)he court ‘as an upper guardian of minor children’ is empowered in certain circumstances to overrule a child’s parent’s refusal to allow blood tests to be done where this could be in the child’s interest. In the present case she was satisfied that it was in the child’s interest for the tests to be done. She relied in this regard on M v R 1989 (1) SA 416 (0) in which Kotze J granted an order similar to the one sought in the present case. The factors on which he relied were the following:
‘(1) (I)t was in [the child’s] interest that reliable information was urgently obtained to gain clarity on the question of whether applicant was indeed his father; (2) blood analyses being currently performed were indubitably a reliable aid in clarifying a dispute about paternity; (3) the results of the intended blood analyses would be admissible as evidence in a court of law; (4) the public interest and the judiciary’s keen pursuit of the truth in all legal disputes ; and (5) the fact that respondent was [ the child’s] guardian and was compelled to act in his best interest even if doing so would be contradictory to her own wishes.’
[11] The respondent contended that the facts set out in the appellants replying affidavit constituted new matter on which he could not rely. It was further submitted that as the main point at issue between the parties was the paternity of the child the appellant should have alleged in his founding affidavit (which he had not done) that he had relations with the respondent which led to the birth of the child.
[12] I have already pointed out that the appellant’s founding affidavit was not drafted as clearly as it might have been. But an allegation that he was uncertain whether he was the child’s father carried with it the clear implication that he had had intercourse with the respondent round about the time of conception.
[13] As far as the alleged new matter is concerned an applicant is entitled to include in his replying affidavit ‘evidence which serves to refute the case made out by the respondent in the answering affidavit’: Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5 ed, Volume 1, p 429.
[14] While the appellant’s averments that he had maintained the child since birth and regularly deposited money in a bank account for him were in my view new matter, this cannot be said of the evidence about the child’s first birth certificate, which is a public document, and indicates that
the respondent provided the information appearing on it. It therefore served to refute the respondent’s denial that she ever claimed that the appellant was the father of her child.
[15] Apart from the magistrate’s statement about the court ‘as upper guardian of minor children’ being empowered to grant the relief sought this matter (which does not appear to be correct as it is the High Court and not the Magistrate’s Court, which is the upper guardian of minor children), I have no fault to find with the magistrate’s judgment. The principles set out in the decision in M v R, supra, on which the magistrate relied and which has recently been approved by the Lesotho Court of Appeal in Kali v Mahasele, an as yet unreported judgment delivered in civil appeal No. 19 of 2011 on 21 October 2011, clearly apply in this case. Ms S.B. Shongwe, who appeared on behalf of the respondent, very fairly stated that she would not take the point about the magistrate’s court not being the upper guardian of minor children in view of the fact that the case has already been in the High Court and is now in the Supreme Court and it is a case concerning what is in the best interests of the child.
[16] In the result I make the following order;
-
The appeal is allowed with costs.
-
The order of the Court a quo is set aside and
replaced by the following:
‘ The appeal is dismissed with costs.’
____________________
I.G. FARLAM
JUSTICE OF APPEAL
I agree ____________________
DR S. TWUM
JUSTICE OF APPEAL
I agree _______________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
DELIVERED 30TH NOVEMBER 2011
IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 22/2011
In the matter between:
BENITA PAIVA APPELLANT
And
IVAN JAMES GROENING RESPONDENT
CORAM : DR. S. TWUM, JA
I.G. FARLAM, JA
M.C.B. MAPHALALA, JA
FOR APPELLANT : S.P. MAMBA
FOR RESPONDENT : S.B. SHONGWE
SUMMARY
Law of persons ? whether alleged father of child entitled to have test done on child to establish whether he was the father.
JUDGMENT
_____________________________________________________________
FARLAM, JA
[1] This is an appeal from a judgment given by Mabuza J, sitting in the High Court, in which the learned judge made the following order:
‘(T)he application for review succeeds and the order of the court a quo is hereby set aside with costs. The first respondent [the present appellant] is at liberty to re-launch a fresh application wherein all relevant issues are properly pleaded and ventilated’
[2] The appellant’s first ground of appeal is based on the fact that the case before the court a quo was an appeal against a decision of the magistrate sitting in the Manzini magistrate’s Court. An application for review of that decision had been launched but it was not ripe for hearing as the magistrate and the applicant before the magistrate had not yet filed replying affidavits.
[3] In the circumstances it is clear that the judgment in the court a quo cannot stand and must be set aside. What has to be considered therefore is the appeal which was argued before the court a quo but on which it did not give a judgment.
[4] The present appellant brought an application in the magistrate’s court for an order directing the present respondent to make her minor child, Roberto Manuel Paiva Groening, available to the appellant on 21 May 2010 at his, the appellant’s, home so that paternity tests could be conducted on the child in order to ascertain whether the child, who at that stage was ten years old, was the son of the appellant.
[5] The appellant’s founding affidavit was not drafted as clearly as it might have been. He said that from shortly after the child was born the respondent had said that he was the child’s father. He said that he was uncertain as to whether this was correct, hence his request for the child to be made available for a paternity test. The respondent had refused his request.
[6] He stated that he had the right to know whether he was the child’s father and said that the child equally had the right to know who his father is.
[7] In her answering affidavit the respondent denied that the appellant was the father of her child or that she had even claimed he was. She accordingly prayed for the dismissal of the application.
[8] The appellant then filed a replying affidavit in which he stated, among other things, that when the child’s birth was registered he was reflected as the father and the respondent as the mother and informant. He went on to say that ten years later the respondent had a new birth certificate issued in respect of the child with the particulars in respect of the father blank but the child’s name still reflected as Paiva-Groening. He annexed copies of these two birth certificates. He also said that he has been maintaining the child since birth, and depositing money on a monthly basis in his bank account.
[9] In granting the application the magistrate said that (t)he court ‘as an upper guardian of minor children’ is empowered in certain circumstances to overrule a child’s parent’s refusal to allow blood tests to be done where this could be in the child’s interest. In the present case she was satisfied that it was in the child’s interest for the tests to be done. She relied in this regard on M v R 1989 (1) SA 416 (0) in which Kotze J granted an order similar to the one sought in the present case. The factors on which he relied were the following:
‘(1) (I)t was in [the child’s] interest that reliable information was urgently obtained to gain clarity on the question of whether applicant was indeed his father; (2) blood analyses being currently performed were indubitably a reliable aid in clarifying a dispute about paternity; (3) the results of the intended blood analyses would be admissible as evidence in a court of law; (4) the public interest and the judiciary’s keen pursuit of the truth in all legal disputes ; and (5) the fact that respondent was [ the child’s] guardian and was compelled to act in his best interest even if doing so would be contradictory to her own wishes.’
[11] The respondent contended that the facts set out in the appellants replying affidavit constituted new matter on which he could not rely. It was further submitted that as the main point at issue between the parties was the paternity of the child the appellant should have alleged in his founding affidavit (which he had not done) that he had relations with the respondent which led to the birth of the child.
[12] I have already pointed out that the appellant’s founding affidavit was not drafted as clearly as it might have been. But an allegation that he was uncertain whether he was the child’s father carried with it the clear implication that he had had intercourse with the respondent round about the time of conception.
[13] As far as the alleged new matter is concerned an applicant is entitled to include in his replying affidavit ‘evidence which serves to refute the case made out by the respondent in the answering affidavit’: Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5 ed, Volume 1, p 429.
[14] While the appellant’s averments that he had maintained the child since birth and regularly deposited money in a bank account for him were in my view new matter, this cannot be said of the evidence about the child’s first birth certificate, which is a public document, and indicates that
the respondent provided the information appearing on it. It therefore served to refute the respondent’s denial that she ever claimed that the appellant was the father of her child.
[15] Apart from the magistrate’s statement about the court ‘as upper guardian of minor children’ being empowered to grant the relief sought this matter (which does not appear to be correct as it is the High Court and not the Magistrate’s Court, which is the upper guardian of minor children), I have no fault to find with the magistrate’s judgment. The principles set out in the decision in M v R, supra, on which the magistrate relied and which has recently been approved by the Lesotho Court of Appeal in Kali v Mahasele, an as yet unreported judgment delivered in civil appeal No. 19 of 2011 on 21 October 2011, clearly apply in this case. Ms S.B. Shongwe, who appeared on behalf of the respondent, very fairly stated that she would not take the point about the magistrate’s court not being the upper guardian of minor children in view of the fact that the case has already been in the High Court and is now in the Supreme Court and it is a case concerning what is in the best interests of the child.
[16] In the result I make the following order;
-
The appeal is allowed with costs.
-
The order of the Court a quo is set aside and
replaced by the following:
‘ The appeal is dismissed with costs.’
____________________
I.G. FARLAM
JUSTICE OF APPEAL
I agree ____________________
DR S. TWUM
JUSTICE OF APPEAL
I agree _______________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
DELIVERED 30TH NOVEMBER 2011
IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 22/2011
In the matter between:
BENITA PAIVA APPELLANT
And
IVAN JAMES GROENING RESPONDENT
CORAM : DR. S. TWUM, JA
I.G. FARLAM, JA
M.C.B. MAPHALALA, JA
FOR APPELLANT : S.P. MAMBA
FOR RESPONDENT : S.B. SHONGWE
SUMMARY
Law of persons ? whether alleged father of child entitled to have test done on child to establish whether he was the father.
JUDGMENT
_____________________________________________________________
FARLAM, JA
[1] This is an appeal from a judgment given by Mabuza J, sitting in the High Court, in which the learned judge made the following order:
‘(T)he application for review succeeds and the order of the court a quo is hereby set aside with costs. The first respondent [the present appellant] is at liberty to re-launch a fresh application wherein all relevant issues are properly pleaded and ventilated’
[2] The appellant’s first ground of appeal is based on the fact that the case before the court a quo was an appeal against a decision of the magistrate sitting in the Manzini magistrate’s Court. An application for review of that decision had been launched but it was not ripe for hearing as the magistrate and the applicant before the magistrate had not yet filed replying affidavits.
[3] In the circumstances it is clear that the judgment in the court a quo cannot stand and must be set aside. What has to be considered therefore is the appeal which was argued before the court a quo but on which it did not give a judgment.
[4] The present appellant brought an application in the magistrate’s court for an order directing the present respondent to make her minor child, Roberto Manuel Paiva Groening, available to the appellant on 21 May 2010 at his, the appellant’s, home so that paternity tests could be conducted on the child in order to ascertain whether the child, who at that stage was ten years old, was the son of the appellant.
[5] The appellant’s founding affidavit was not drafted as clearly as it might have been. He said that from shortly after the child was born the respondent had said that he was the child’s father. He said that he was uncertain as to whether this was correct, hence his request for the child to be made available for a paternity test. The respondent had refused his request.
[6] He stated that he had the right to know whether he was the child’s father and said that the child equally had the right to know who his father is.
[7] In her answering affidavit the respondent denied that the appellant was the father of her child or that she had even claimed he was. She accordingly prayed for the dismissal of the application.
[8] The appellant then filed a replying affidavit in which he stated, among other things, that when the child’s birth was registered he was reflected as the father and the respondent as the mother and informant. He went on to say that ten years later the respondent had a new birth certificate issued in respect of the child with the particulars in respect of the father blank but the child’s name still reflected as Paiva-Groening. He annexed copies of these two birth certificates. He also said that he has been maintaining the child since birth, and depositing money on a monthly basis in his bank account.
[9] In granting the application the magistrate said that (t)he court ‘as an upper guardian of minor children’ is empowered in certain circumstances to overrule a child’s parent’s refusal to allow blood tests to be done where this could be in the child’s interest. In the present case she was satisfied that it was in the child’s interest for the tests to be done. She relied in this regard on M v R 1989 (1) SA 416 (0) in which Kotze J granted an order similar to the one sought in the present case. The factors on which he relied were the following:
‘(1) (I)t was in [the child’s] interest that reliable information was urgently obtained to gain clarity on the question of whether applicant was indeed his father; (2) blood analyses being currently performed were indubitably a reliable aid in clarifying a dispute about paternity; (3) the results of the intended blood analyses would be admissible as evidence in a court of law; (4) the public interest and the judiciary’s keen pursuit of the truth in all legal disputes ; and (5) the fact that respondent was [ the child’s] guardian and was compelled to act in his best interest even if doing so would be contradictory to her own wishes.’
[11] The respondent contended that the facts set out in the appellants replying affidavit constituted new matter on which he could not rely. It was further submitted that as the main point at issue between the parties was the paternity of the child the appellant should have alleged in his founding affidavit (which he had not done) that he had relations with the respondent which led to the birth of the child.
[12] I have already pointed out that the appellant’s founding affidavit was not drafted as clearly as it might have been. But an allegation that he was uncertain whether he was the child’s father carried with it the clear implication that he had had intercourse with the respondent round about the time of conception.
[13] As far as the alleged new matter is concerned an applicant is entitled to include in his replying affidavit ‘evidence which serves to refute the case made out by the respondent in the answering affidavit’: Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5 ed, Volume 1, p 429.
[14] While the appellant’s averments that he had maintained the child since birth and regularly deposited money in a bank account for him were in my view new matter, this cannot be said of the evidence about the child’s first birth certificate, which is a public document, and indicates that
the respondent provided the information appearing on it. It therefore served to refute the respondent’s denial that she ever claimed that the appellant was the father of her child.
[15] Apart from the magistrate’s statement about the court ‘as upper guardian of minor children’ being empowered to grant the relief sought this matter (which does not appear to be correct as it is the High Court and not the Magistrate’s Court, which is the upper guardian of minor children), I have no fault to find with the magistrate’s judgment. The principles set out in the decision in M v R, supra, on which the magistrate relied and which has recently been approved by the Lesotho Court of Appeal in Kali v Mahasele, an as yet unreported judgment delivered in civil appeal No. 19 of 2011 on 21 October 2011, clearly apply in this case. Ms S.B. Shongwe, who appeared on behalf of the respondent, very fairly stated that she would not take the point about the magistrate’s court not being the upper guardian of minor children in view of the fact that the case has already been in the High Court and is now in the Supreme Court and it is a case concerning what is in the best interests of the child.
[16] In the result I make the following order;
-
The appeal is allowed with costs.
-
The order of the Court a quo is set aside and
replaced by the following:
‘ The appeal is dismissed with costs.’
____________________
I.G. FARLAM
JUSTICE OF APPEAL
I agree ____________________
DR S. TWUM
JUSTICE OF APPEAL
I agree _______________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
DELIVERED 30TH NOVEMBER 2011
