A MISSED OPPORTUNITY TO SETTLE THE LAW ON DNA TESTING IN PATERNITY DISPUTES YD (now M) v LB 2010 6 SA 338 (SCA)

Abstract

On 17 September 2010, in (YD (Now M) v LB (2010 6 SA 338 (SCA)), the Supreme Court of Appeal (SCA) unanimously delivered what should have been a ground-breaking decision in the use of deoxyribonucleic acid (DNA) testing for paternity disputes. This was an appeal against the decision of Murphy J, in order to determine the child’s paternity. An order for DNA tests was granted by the court a quo against the mother and her daughter, Y, to determine whether Mr LB (B) was the biological father of Y in the case of unmarried persons. If the tests proved that he was the father, he would then be entitled to full parental rights. This judgment should have been ground-breaking for two main reasons. First, YD was the first SCA judgment dealing with the use of scientific tests in paternity disputes. Until then, different provincial divisions had reached different conclusions on the court’s power to compel either a minor or an adult to submit to the tests. Thus, YD was an ideal opportunity for the SCA to unify “the provincial divisions”, that is, to bring certainty of law regarding DNA testing for paternity disputes. Second, the decision came at a time of the constitutional era and the era of the Children’s Act (38 of 2005) with its section 37, which deals with parties not willing to submit to DNA testing in paternity disputes. In particular, section 37 is meant to be a statutory intervention seeking to achieve a compromise position where the court is faced with the evil of having to force a recalcitrant adult to submit himself or the minor child, against his or her will, for testing where paternity is disputed. Hence, this was an opportunity for the SCA to put section 37, which had not been tested before a court of law, into perspective. However, the court missed this golden opportunity. Therefore, the purpose of this note is to provide a critical analysis of the SCA’s decision of YD. It begins with a brief overview of the legal position prior to the judgment of YD and concludes by reviewing the possible effects of the YD judgment.