Court orders DNA test after Limpopo husband claims he can't have children in maintenance dispute

The Limpopo High Court in Polokwane has stepped into a deeply contentious family dispute as an estranged couple battles over the maintenance and paternity of their two-year-old daughter. 

The crux of the matter lies in the husband's vehement denial of paternity, citing a past vasectomy and his assertion that he cannot possibly be the child's father. He submitted that he suffers from a medical condition called Azoospermia, which means that he has a complete absence of sperm. To support his claim, he provided the court with medical documents as evidence.

His denial pushed him to seek legal recourse, ultimately leading to an order for DNA testing to determine his biological relationship with the child.

The couple had a relationship that the woman asserts was a legitimate customary marriage, a claim the husband contests. The woman maintains that her husband is the biological father of their two-year-old daughter, a claim the husband disputes as impossible.

The couple is currently in the process of divorce, with the validity of their customary marriage being one of the contentious issues in the proceedings.

A previous court had ordered that the parties submit the child for DNA testing, but this was not carried out due to an ongoing appeal by the mother concerning this and other legal matters.

Previously, the woman secured an order from the Children’s Court mandating the husband to provide maintenance for both her and the child while the divorce is being finalised. Although the husband initially complied with the maintenance order, he subsequently ceased payments.

His wife then obtained a contempt of court ruling against him, resulting in a fine of R50,000 or a 13-month prison sentence, which was entirely suspended on the condition that he does not commit a similar offence.

According to his wife's legal representative, he is currently six months in arrears on both spousal and child maintenance, totaling R126,000. His failure to appear in court later resulted in a warrant for his arrest, with his wife’s legal counsel dubbing him a “fugitive from justice.”

In this latest application, the judge emphasised that a paternity test would definitively resolve the maintenance conflict. The couple had a relationship that the woman asserts was a legitimate customary marriage, a claim the husband contests.

Acting judge Burnett noted that the parties are entrenched in their legal positions, showing no willingness to yield to the other. In doing so, they are overlooking the child's best interests, which should be the primary concern.

"The parties’ thirst for litigation has caused them to lose sight of what is important, specifically the minor child. The parties probably could have paid for the minor child’s entire tertiary education with what they have spent on litigation thus far," said the judge.

In affirming the order issued last month regarding the paternity test, the acting judge remarked that it is the child's constitutional and statutory right to know their identity and receive parental care.

Moreover, the judge said there is no evidence of any kind that the mother will suffer any harm if the DNA test is done.

Meanwhile, the husband will face irreparable harm if the order is not granted, as his life will remain in an uncertain state, preventing him from moving forward. Furthermore, he is exposed to the risk of criminal prosecution for failing to maintain the child and the mother. This potential criminal record could jeopardise his ability to continue practising as a legal practitioner, leading to severe repercussions for his professional career.

The judge said by granting the order for a DNA test, it will minimise further legal and administrative proceedings in relation to the child, thereby acting in her best interests.

"It is in the interest of justice to bring this dispute to an end. The outcome of the paternity of the child and marital dispute will potentially lead to the settlement of all the other outstanding pending matters," said the judge.

sinenhlanhla.masilela@iol.co.za

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