Paternity Disputes in South African Law.

When hearing maintenance cases, the first question a court must determine is whether a person is indeed liable to pay maintenance. Because maintenance claims are based on paternity, liability needs to be established first. The maintenance court has the jurisdiction to determine paternity and paternity is proved on a balance of probabilities. For example, if the mother was married at the time of conception, there is a rebuttable presumption that the husband is the father of the child. If the mother was not married, the presumptions contained in the Children’s Act come into play.

The Act stipulates that if it is proved that the father of a child born out of wedlock 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 that raises a reasonable doubt, presumed to be the biological father of the child.

The Act further states that if a party to any legal proceedings in which the paternity of the child is in question refuses to submit him/herself or the child to a blood test to determine the child’s paternity, the court must warn such party of the effect their refusal might have on their credibility. The maintenance officer may order that the parties take blood tests, but only if they consent.

If the maintenance officer is of the opinion that the child’s paternity is in dispute, and  if the mother has parental authority and she and the alleged father are willing to submit both themselves and the child to scientific tests to determine paternity but are unable to pay the costs involved, he/she may at any time during a maintenance enquiry but before the maintenance court makes an order, request the court to hold a summary enquiry into the payment of the costs of the tests. Should the maintenance officer accede to such a request, the maintenance court may look to the means of the mother and the alleged father, and at any other circumstances that, in the court’s opinion, should be taken into consideration. At the conclusion of this enquiry, the maintenance court may:

• make a provisional order concerning payment of the costs of the tests, including a provisional order that the state pay the whole amount or part thereof; or
• make no order.