A paternity dispute and DNA testing resulted in a legal wrangle after four people claimed they are also the biological children of their now deceased “father”, and that they also have a right to share in his estate.

However, they want the deceased’s body to be exhumed so that DNA samples can be taken from him to prove that they are his children. The two children of the deceased (the applicants) agree that DNA testing should be done, but they are refusing to have their father’s body exhumed.

The two turned to the Eastern Cape High Court, sitting in Mthatha, where they asked for an order directing that DNA testing be done using their DNA samples. The respondents, in opposing the application, insisted that the testing be done using the remains of their father.

It was not denied by the two biological children that their father had an affair with another woman. They stated to the court that they are only aware of one child born from that relationship, who had previously passed away.

According to them, they do not know the four other children who have now come forward after his death.

The respondents, insisting that they too are his biological children, had meanwhile lodged a claim against the estate of the deceased, alleging their right to inherit from the deceased’s estate.

The court had to determine whether it had the power to order an adult person to submit himself or herself to a DNA test to prove paternity. It also had to determine whether it was in the interest of justice that the body of the deceased be exhumed to conduct a DNA test to prove paternity.

While all the parties agree that DNA testing in this case is vital, the respondent children stood firm that the only way to determine that they are his children is by exhuming the body and testing the remains. According to them, it is the only way that the truth will prevail.

The applicants, on the other hand, said it will suffice to use samples from them or other direct descendants of the deceased.

Acting Judge M Mhambi commented that while this is a thorny issue, what is important is the administration of justice to both parties equally.

“Even though this court is concerned with the administration of justice, and that the truth and only it gives an end to the legal controversies, this court need not give an order compelling drastic relief in circumstances when less drastic measures or remedies are available,” the judge said.

He added that an order must be in the interests of justice and not against public morals.

“It is in the public morals and policy that after death, the deceased’s remains should not only be decently and reverently interred, but should also remain in the grave undisturbed. This public morale should indeed be respected by social institutions, including courts of law,” Judge Mhambi said.

He, however, added that if good reasons are given as to why a body should be exhumed, a court will not hesitate to grant such an order.

But in this case, he said, the proposition from the respondents is drastic. He said the DNA test is possible to be conducted between the applicants and the respondents. This is less stringent and less drastic than the way proposed by the respondents.

He ordered that the respondents submit themselves for the DNA testing and that the outcome of the tests be handed to their attorney to pursue further action.

zelda.venter@inl.co.za

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