Lilian Matiza N.O (In her capacity as Executrix Dative to Estate Late Joel Biggie Matiza) and Others v Tendai Muchando and Another

Joel Biggie Matiza (the deceased) died on 22 January 2021, survived by his wife (first applicant) and three children (second to fourth applicants). First applicant was appointed executrix dative to the deceased's estate. First respondent claimed to be a biological son of the deceased, born of the deceased and Rosemary Muchando. On 14 April 2021, first respondent requested to be included in the distribution plan of the estate, attaching paternity tests conducted in 1997 and 1998. These DNA tests, conducted when first respondent was a minor pursuant to magistrate's court orders, showed 99.82% and 99.85% probability of paternity respectively. The deceased had previously challenged first respondent's paternity and had launched three separate applications for scientific tests, including HC 8707/17 which he withdrew on 9 February 2018. First applicant questioned the authenticity of the DNA tests and sought to compel first respondent to undergo fresh DNA testing.

• Whether the Court can compel a major to undergo DNA testing without consent
• Whether compelling DNA testing violates constitutional rights to human dignity and personal security under sections 51 and 52 of the Constitution of Zimbabwe
• Whether prior DNA tests conducted when the respondent was a minor are sufficient to establish paternity
• Whether the interests of winding up an estate justify invasion of bodily integrity

The application was dismissed with costs against the applicants.

A court cannot compel a major person to undergo DNA testing without their informed consent, as this would violate the constitutional rights to human dignity (section 51) and personal security (section 52) under the Constitution of Zimbabwe Amendment (No 20) Act, 2013. Section 52(c) specifically protects the right not to be subjected to medical or scientific experiments or to the extraction of bodily tissue without informed consent. DNA testing necessarily involves the extraction of bodily tissue and therefore falls within this constitutional protection. Where DNA tests have already been conducted on a person as a minor pursuant to valid court orders, and those tests establish paternity with a high degree of probability (99.82% and 99.85% being "practically proven"), it is not tenable to compel fresh DNA testing once that person attains majority and has constitutional rights to refuse.

The court observed that the dispute over first respondent's paternity had continued for approximately 25 years and there was clearly a need for finality to the issue. The court noted that there may be other ways in which the applicants or respondent could bring conclusion to the dispute if so advised, without specifying what those alternatives might be. The court also made critical observations about the applicants' lack of candor, noting they had "skirted the truth or deliberately failed to elicit a number of issues" and had feigned ignorance about the origins and authenticity of the DNA tests despite having ample opportunity to investigate them. The court commented that the deceased himself had withdrawn HC 8707/17 (his third application for paternity testing) without placing reasons on record, suggesting perhaps acceptance of the prior test results.

This case is significant in Zimbabwean jurisprudence as it establishes the constitutional protection against compelled DNA testing for adults. It clarifies that sections 51 and 52 of the Constitution of Zimbabwe, which protect human dignity and personal security (including bodily integrity), prevent courts from compelling majors to undergo DNA testing without consent, even where such testing might assist in estate administration. The case demonstrates the supremacy of constitutional rights over administrative convenience in estate matters. It also establishes that DNA tests conducted on minors pursuant to court orders retain evidential value and cannot be simply disregarded when the subject attains majority. The judgment balances the competing interests of efficient estate administration against fundamental constitutional rights, prioritizing bodily integrity and informed consent.