Prepared by: Clayton Mutseneki

Prepared for: Family Law tutorials

PATERNITY

Paternity Testing

Paternity is the legal determination of the man who is the biological father of a child.

PRELIMINARY ISSUE:

While maternity (who is the natural mother of a child) is never in doubt (except in cases of
surrogate motherhood) the question of who is the father (paternity) is not so clear.

A woman is presumed to know better who is the father of her child.

General Law

Required Standard of Proof: That the man could not possibly be the father and not that he is
probably not the father.

Total exclusion of paternity achieved through proof on one’s sterility, lack of access at the
relevant time or blood tests that exclude paternity. DNA is also now being used to determine
cases of paternity,

*See* Sanders Moyo vs Helen Moyo HH-31-051, DNA proved that an alleged child of the
marriage was fathered by another man.

If woman has sexual intercourse with other men at the time that she could possibly have
gotten pregnant , such proof only shows that man possibly not the father so that does not
suffice to rebut the presumption. (Exceptio plurium concumbentium)

BLOOD TESTS & DNA

In Zimbabwe, blood tests currently conducted at NBTS or the AISBT through the courts or
through a court order. An appointment is booked and on the allocated day, the parties i.e. the

1
Sanders Moyo vs Helen Moyo HH-31-05.
father, the mother and the child( ren) go to have their blood drawn. Its now possible just for
alleged father & the children to go on their own due to technological advancements.

Blood tests can establish a man's non paternity but not his paternity. In other words blood
tests can show that a man is NOT the father but they cannot show that he is the father. Can
only show that the man belongs to a group of men who are possible fathers. Results show
probability of paternity of around 93 % i.e. paternity highly probable.

On other hand DNA now deemed an acceptable method of proving paternity/non paternity. It
has a higher standard of proof as it can show a degree of paternity or non paternity which is
99.99%

Tendai Westerhof case; Moyo vs. Moyo ( Bhunu J)

Question of whether courts can compel a person to undergo blood tests, in Zimbabwean
jurisdiction was covered in case of Mtshingwe vs Moyo HB-120-052:

Two parties were claiming to be father of a girl child. Now possible to determine paternity
just by using blood samples of alleged father and child, court can acting in the best interests
of a child order parties to undergo blood test.

In Scotland, a court has no inherent power to compel a non-consenting adult to undergo a

What of minor children?

Can & should the High Court as the upper guardian of all minor children compel children to
undergo blood tests.? See s81(2) as read with s 81(3) of the 2013 Constitution.

Factors that may be relevant in proving paternity or rebutting a presumption of

(a) Absence of sex

If it can be proved that the man who is presumed to be the child’s father did not have sex with
the child’s mother at any time when the child could have been conceived (for example,
because he is impotent or was elsewhere at the time), the presumption of paternity is rebutted.

(b) The gestation period

2
Mtshingwe vs Moyo HB-120-05
To establish who a child’s father is, it is often necessary to determine the period of gestation.
In Roman law it was accepted that a child born between 180 and 300 days after conclusion of
the marriage was conceived during the marriage. This presumption was taken over by the
Roman-Dutch writers. In our law today there is no fixed gestation period. The courts make a
decision on an ad hoc basis, sometimes relying on medical evidence as to when conception
could possibly have taken place, other times taking judicial notice of the “normal” period of
gestation.

(c) Sterility

Proof of sterility obviously shows that the man is not the child’s father.3

(d) The exceptio plurium concubentium

Sometimes a man admits that he has had sex with a woman during the time the child could
have been conceived, but then alleges and proves that the woman also had sex with another
man or other men during that period. This defence is known as the exceptio plurium
concubentium. Although our common-law authors are not unanimous on the exceptio
plurium concubentium and the Appellate Division left the issue of the applicability of the
exceptio in modern law open in S v Swart4 the generally accepted view nowadays is that the
exceptio does not form part of our law. Accordingly, it is of no avail to a man to prove that
other men also had sex with the child’s mother.

(e) Physical features

The fact that the physical features of the child do or do not resemble those of the alleged
father does not bear much weight in proving or disproving paternity. Physical appearance
may, however, be considered in conjunction with other factors which prove or disprove
paternity. Mostly under customary law it is relied on.

(f) Contraceptives

Evidence that a contraceptive device was used during sex is not recognised as sufficient proof
that a particular man is not the child’s father.

(g) Scientific tests

3
See e.g. Fitzgerald v Green 1911 EDL 432; Williams v Williams 1925 TPD 538; R v Pie 1948 (3) SA 1117 (O); R v
Swanepoel 1954 (4) SA 31 (O); Van Lutterveld v Engels 1959 (2) SA 699 (A).
4
S v Swart 1965 (3) SA 454 (A).
The court’s power to order blood or DNA tests in a paternity dispute. Until a few decades
ago, blood and DNA tests were seldom used in Zimbabwe in paternity disputes, because
these tests were not as reliable as they are nowadays. Furthermore, the blood or DNA of all
three parties (that is, the alleged father, alleged mother and the child) was needed in order to
obtain a result. If the parties voluntarily submitted themselves and the child to a test, the
courts were prepared to accept the results as evidence. However, in Zimbabwe it must be note
that Mtshingwe vs Moyo HB-120-05 the Court has the power to order parties to undergo
blood and DNA test for the best interests of the child.

DEFENCES VS PATERNITY PRESUMPTION

(a) Sterility as distinguished from impotence

(b) Use of blood tests that exclude man from paternity

(c) non access to the woman at the relevant time

(d) DNA tests that exclude paternity e.g. in Sanders Moyo vs Helen Moyo HH-31-055, DNA
excluded the alleged father who was the matrimonial husband.

If a man admits sexual intercourse at any time, he is immediately presumed to be the father of
the child until he proves on a balance of probabilities that he cannot possibly be the father.

So, in Zimbabwe, if a man admits sexual intercourse the woman is to be immediately

Non access at the relevant time: This is where a man admits sexual intercourse but at a time
when the woman couldn’t have conceived the child whose paternity is in dispute e.g. 2 years
before birth.

However, 10 months before birth of child is not acceptable

If man had no physical access at the time of gestation e.g. out of the country, in prison. This
however is a question of fact and each case has to be decided on its own merits.

Sterility: Relevant period is at time of conception i.e. the man must be sterile at that time and
not at some time after.

Sterility - vs. - impotence: Sterility is the inability to procreate children whereas impotence
is the inability to perform a sexual act.

5
Sanders Moyo vs Helen Moyo HH-31-05
Impotent man cannot achieve sexual act but a sterile man can have the capacity to have
sexual intercourse (virility) but his own semen is unable to make a woman pregnant.

Impotence can be accompanied by sterility - double jeopardy

Proof of impotence does not rebut the presumption of paternity unless it is accompanied by
sterility.

Sterility requires clear medical proof &/or expert evidence

INSUFFICIENT DEFENCES

That the woman slept with other men at the relevant time - already discussed under children
born in wedlock.

Proof that the woman is a prostitute - not sufficient - it is the policy of the law that children
shall be maintained by those men who are the possible authors of their being.

Use of contraceptives: no method of contraception is 100% effective

coitus interruptus- (withdrawal) not a defence especially since it is so infallible.

Proof of parentage

The issue of who a child’s parent is arises most often in the context of a dispute about
paternity. Most reported cases therefore deal with matters relating to proving whether a
particular man is the father of a child, and not whether a particular woman is the mother of
the child. However, the question of who the child’s mother is may arise, for example, in
respect of a foundling, if babies are switched in a maternity ward or surrogacy issues.
Because paternity is in dispute more often than maternity, two presumptions of paternity have
been created:

i. one applies in respect of the child of a woman who is a party to a marriage or a civil
union and
ii. the other applies in respect of the child of a woman who is not a party to a marriage or
a civil union.

Presumption of paternity

(a) A child born of a woman who is a party to a marriage or a civil union

The pater est quem nuptiae demonstrant presumption can be rebutted by evidence that the
man is, in fact, not the child’s father; in other words, by evidence that the child was born of
unmarried parents. The husband can, for example, rebut the presumption by proving that they
did not have sex with each other during the period when the child was conceived.

In the past, our courts have been hesitant to declare a child who was born of a married
woman to be “illegitimate”. For example, in F v L6 a man applied for an order declaring him
to be a child’s father while the child’s mother was married to another man. The court rejected
the application because it found that it would not be in the child’s interests to be declared
“illegitimate”. Judge Harms held that the mother’s husband was presumed to be the child’s
father by virtue of two presumptions. Firstly, the presumption pater est quem nuptiae
demonstrant applied and he was thus presumed to be the child’s father. Secondly, the
husband also admitted that he had had sex with the child’s mother during the period of
conception.

The Courts are reluctant to deal with bastardization actions since it’s not in the best
interests of the child>>>all children should have fathers.

Courts– presumption vs bastardisation actions , see Shumba vs Shumba HB-25-057, man

6
F v L 1987 (4) SA 525 (W) (also reported as D v L 1990 (1) SA 894 (W)).
7
Shumba vs Shumba HB-25-05.