THE COURT’S POWER TO COMPEL DNA TESTING IN PATERNITY DISPUTES – LB v YD 2009 5 SA 463 (T)

Abstract

A fundamental scientific breakthrough was made in 1900 by Landsteiner, who demonstrated that the red blood cells of some individuals contained different chemical substances from the blood cells of others; and that all blood could be classified into a small number of groups. In accordance with recognized principles of genetics these characteristics are transmitted from one generation to another, and thus “[A] comparison of the characteristics of a child’s blood with that of his mother and a particular man may show that the man cannot be the father … [and] if it is known that at the material times the mother had had intercourse only with H (her husband) and X and the blood test excludes H but not X, then X must be the father”. Whilst English courts began to accept such evidence in paternity cases, Heaton points out that until a few decades ago the unreliability of blood tests meant that they were seldom employed in such cases in South Africa. A further complication in the use of these tests as a means of determining parentage, however, related to the fact that in order for an acceptable result to ensue it was necessary to have samples not only from a child but also from the adults involved. What if an adult refused to be tested, or a parent refused to allow the child to undergo a test? The South African courts initially held that they could not compel any person to undergo blood tests, although they were prepared to accept evidence obtained through voluntary testing. The potential consequences of the courts refusing to compel testing are that a non-biological “father” will be compelled to maintain the child. More recently the South African courts have seen fit to order blood tests in paternity disputes, although whether such orders should be made remains controversial. The latest case dealing with this issue is that of LB v YD (2009 5 SA 463 (T)). (Leave to appeal the decision in this matter was dismissed in YD v LB (A) 2009 5 SA 479 (GNP)).