Disturbing the dead for DNA testing? High Court rules

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Paternity dispute

In this case, the applicants’ father, Mzimasi Madubela (the deceased), was said to have had an intimate relationship with the respondents’ mother, from which a sibling of the respondents (now deceased and having predeceased all the parties to the application) was born.

On this basis, the respondents asserted that they, too, were the biological children of the deceased. The respondents consequently lodged a claim against the deceased’s estate, alleging that they had an inherent right to inherit from it.

However, the applicants, as the deceased’s acknowledged biological children, maintained that they had no knowledge of the respondents being the deceased’s biological children – thus, at the core of this judgment is a paternal dispute.

DNA testing

Due to the paternal dispute between the applicants and respondents, the applicants sought an order directing the respondents to submit themselves to a DNA test to determine whether the respondents were the biological children of the deceased.

However, the respondents opposed the application, insisting that the DNA test be conducted on the remains of the deceased, a proposition that the applicants disagreed with.

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Thus, the issues before the court were firstly, to establish whether the court had the power to order an adult to submit themself to a DNA test for the purpose of proving paternity and secondly, whether it was in the interests of justice that the body of the deceased be exhumed to conduct a DNA test for the purpose of proving paternity.

The respondents assert that the only form of DNA test capable of yielding conclusive evidence of positive paternity is one conducted on the body or remains of the deceased. The respondents maintain that this form of DNA test will be more reliable and ‘provide the truth’.

On the contrary, the applicants suggest that a DNA test conducted without the remains of the deceased should be sufficient. Centrally, the parties disagreed on the manner in which the DNA test should be conducted.

Do courts have the power to order an adult to take a DNA test for a paternity dispute?

Paternity disputes are common in cases involving minors, where courts rely on inherent jurisdiction as upper guardians of minors to resolve the issue, guided by the Children’s Act.

The court confirmed this view in the SCA case of https://www.saflii.org/za/cases/ZASCA/2010/106.html Y M v L B. Thus, courts are generally amenable to order for blood tests or DNA tests in matters involving minors.

However, in this particular case, in addressing the first issue before the court, which was whether courts have the power to order an adult to take a DNA test to facilitate proving paternity, the Acting Judge Mhambi held that courts, indeed, have non-statutory powers to compel an adult to subject themselves to a DNA test for the purposes of paternity.

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Given the frequency and complexity of paternity disputes in South Africa, this position is both necessary and appropriate.

In making this point, the judge quoted Judge Didcott in the case of Seetal v Pravitha and Another NO, who stated that in debating compulsory blood tests, the truth should be discovered whenever possible, but that personal privacy should be respected. Both notions are important, but neither is sacrosanct.

Is it in the interests of justice to exhume the body of the deceased?

The exhumation of human remains is governed by the National Health Act, particularly the regulations relating to the Management of Human Remains.

While courts are amenable to ordering DNA testing with regard to both minors and adults, they have been hesitant to justify the exhumation of a body to determine paternity as seen in the case of https://www.saflii.org/za/cases/ZAGPPHC/2021/519.html M.S.N v C.Z.M and Others, even when it pertained to a minor.

In considering whether it was in the interests of justice to exhume the body of the deceased, the court emphasised the importance of the administration of justice to both parties, equally.

In this judgment, the judge notes that drastic measures should not be employed if there is less drastic relief available.

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The judge further notes that it is in the interest of ‘public morals’ and ‘public policy’ that after death, the deceased’s remains, or body, be decently and reverently buried and remain in the grave undisturbed.

Essentially, a compelling case must be made to justify exhuming a body. Where good cause is shown, courts will not hesitate to grant the request. However, in absence of such justification, granting the request would offend public policy.

Exhumation too drastic

It is now apparent that the respondents’ purported approach was drastic, and that the court does not agree with it. Thus, if the merits of a matter warrant such a request, there are instances where the interests of justice would allow the exhumation of a body.

However, in this instance, the interests of justice simply do not allow for the exhumation of a body for the purposes of proving paternity. Thus, while courts are clothed with non-statutory power to order an adult to submit themselves to a DNA test, proving paternity is insufficient to justify the subsequent exhumation of a body.

This unusual set of facts serves as a timely reminder to attend to our paternity affairs while the relevant parties are still among the living; lest we find ourselves attempting to disturb the dead – a request that courts are, unsurprisingly, disinclined to entertain.