YM v LB

The appellant (M) and respondent (B) commenced a sexual relationship in February 2006, commenced cohabitation in October 2006, and became engaged in November 2006. In March 2007, M moved to Musina to stay with her parents during B's anticipated period working away. M discovered she was pregnant later in March 2007 and was certain B was the father. She decided to end the engagement and married a former boyfriend, Mr M, in July 2007. B's conduct and correspondence showed he believed he was the father, including making monthly payments of R1 000 into M's account during the pregnancy. A daughter, Y, was born on 8 November 2007. After birth, B initially denied paternity through his attorney but then reversed position, claiming to be '100 per cent' certain he was the father while demanding blood and DNA tests. M refused to submit herself and Y to testing. B brought an application to compel testing, which was granted by Murphy J in the North Gauteng High Court.

• Whether a court should order DNA testing where paternity has been established on a balance of probabilities
• Whether the court has inherent jurisdiction as upper guardian of children to order scientific tests in the best interests of a child
• The proper interpretation and application of section 37 of the Children's Act 38 of 2005 regarding scientific tests for paternity
• Whether the rights to privacy and bodily integrity can be limited to compel DNA testing
• Whether discovery of scientific truth should prevail over rights to privacy and bodily integrity

The appeal was upheld with costs including those of two counsel. The order of the high court was replaced with: 'The application is dismissed with costs.'

Scientific tests to determine paternity should not be ordered where paternity has been shown on a balance of probabilities. Courts have inherent jurisdiction as upper guardian of children to order scientific tests in the best interests of a child, but this power should only be exercised where there is genuine uncertainty as to paternity. The function of a court in civil matters is to determine disputes on a balance of probabilities, not to ascertain scientific proof of truth. Whether to infringe rights to privacy and bodily integrity by ordering DNA testing must be determined on a case-by-case basis considering the particular circumstances of the individual child, not through generalized principles favoring scientific truth.

The court commented that it is not necessarily always in an individual's interest to know the truth, citing Seetal v Pravitha 1983 (3) SA 827 (A). The court noted that rights to privacy and bodily integrity may be infringed by court order if it is in the best interests of a child and such limitation is reasonable and justifiable under section 36(1) of the Constitution. Lewis J observed that there are cases where genuine uncertainty as to paternity exists and DNA tests should be ordered for the child in question. The court also commented that the high court should not have ordered M herself to be tested as her maternity could not have been in doubt.

This judgment establishes important principles regarding when courts should order DNA testing in paternity disputes in South African law. It clarifies that such orders should not be made where paternity has been proven on a balance of probabilities, which is the standard required in civil proceedings. The case limits the use of the court's inherent jurisdiction as upper guardian to compel testing only where genuinely necessary for a child's best interests. It rejects a blanket approach favoring scientific truth over constitutional rights to privacy and bodily integrity, instead requiring individualized assessments. The judgment also provides guidance on the interpretation of section 37 of the Children's Act 38 of 2005, confirming that provision anticipates but does not mandate testing where paternity is disputed. It reinforces that civil courts determine matters on balance of probabilities, not scientific certainty.