TINA HOKWANA | Ex-husband loses claim over non-biological daughter

The ex-husband (plaintiff) and the ex-wife (defendant) were married to each other in 1991 and three daughters were born of the marriage; the youngest (N) was born on  December 2 1997.

The parties were later divorced in 2012 and entered into a deed of settlement which was made an order of court.

During or about February 2015, it was established through blood tests that N was not the biological child of the plaintiff. The plaintiff thereafter instituted action against the defendant and his particulars of claim pleaded as follows:

• That he raised N under the impression that it was his own child;
• During or about February 2015 it was established through blood tests that N is not his child;
• Up to February 2015 the defendant represented to the plaintiff that N was his child and that she had an exclusive sexual relationship with the plaintiff during the time that N was conceived;
• When making the aforesaid representation the defendant knew it to be false;
• Alternatively, the defendant had a duty to disclose to the plaintiff that she had an extramarital affair during the time that N was conceived. Her failure to inform the plaintiff constitutes fraudulent non-disclosure with the intention to deceive the plaintiff;
• As a result of the defendant’s misrepresentation, alternatively fraudulent non-disclosure, the plaintiff took the responsibility of maintaining N and paid maintenance for N up to February 2015;
• As a result of the defendant’s misrepresentation, alternatively fraudulent non-disclosure, plaintiff suffered damages in the amount of R1.44m, being the amount spent by plaintiff on the maintenance of N; and
• That the defendant is liable to pay the plaintiff the amount claimed.

In her plea, the defendant denied that she represented to the plaintiff that N was his child, that both parties acted under a mutual impression that the plaintiff was N’s father and the allegation that she represented that she had an exclusive sexual relationship with the plaintiff was noted.

She further denied that she had a duty to disclose to the plaintiff that she had an extra-marital affair during the time that N was conceived nor that her failure to inform the plaintiff constituted fraudulent non-disclosure with the intention to deceive him.

She pleaded that both parties acted under a mutual impression that the plaintiff was N’s father.

The defendant’s contention was that the plaintiff’s claim was contra bonos mores (against public policy) as it adversely affects, alternatively strains, alternatively destroys the loving and caring parental relationship between the plaintiff and the plaintiff’s child N and/or the other plaintiff’s children.

Further, that the plaintiff’s claim “infringes the values of human dignity, the achievement of equality and the advancement of human rights and freedom and has the tendency to destroy the otherwise loving and caring parental relationship with the child N whose rights to family and parental care are protected under section 28 of the constitution.”

The plaintiff’s evidence

The plaintiff testified that he and the defendant met at the university where they both studied and his marriage to the defendant was his first marriage. They discussed family planning and he stated upfront that he did not want more than one child. However, eventually there were three daughters born from the marriage, in 1991, 1994 and 1997, respectively.

After their second child was born, the plaintiff raised his concern, as he previously stated that he only wanted one child. According to the plaintiff, the defendant explained that she used a slimming mixture “which washed away the contraceptives”.

According to the plaintiff, he accepted the fact that they now had two children. After the birth of the third child, N, he again raised his concern regarding the fact that they now had three children and according to the plaintiff, the defendant again gave the explanation that the slimming mixture “washed away the contraceptives”.

The plaintiff testified that he now also has a question mark with regard to the paternity of the other two children. According to the plaintiff, after the first postponement of the trial, there was an agreement that the other two children will also undergo DNA tests.

The plaintiff said that all three children have since been living with the defendant and that there is no meaningful communication between him and the children.

The defendant’s evidence

According to the defendant, the plaintiff did mention that he wanted only one child as at that stage they had already taken in the plaintiff’s youngest sister. The defendant testified that she indicated to the plaintiff that she wanted two of their own children so that there would be three children including the plaintiff’s sister.

The plaintiff asked her how it could have happened that she fell pregnant again. They went to their family doctor and she explained to both the plaintiff and the defendant that the antibiotics could have “washed the contraceptives out of her system”.

After the birth of the second child the defendant decided, after having a discussion with their doctor, that she will use an injection as contraceptive. The plaintiff at that stage filed for divorce, again saying that she should choose between their marriage and the child.

The defendant testified that she met a man (AM) from Witbank. She met him at Kroonstad College, where she went for training, which training was presented by AM and they became friends. Some months later AM had to come to Pretoria for a business meeting on a particular Monday. He phoned her and asked to meet with her after work.

While they were there that Monday, AM’s car was stolen from the undercover parking area. The defendant consequently had to take him to the police station to report the matter. AM would have driven back to Witbank that same evening, but due to the theft of his car, he had to sleep over at a Formula 1 Hotel. The defendant drove him to the hotel.

She testified that she was in a vulnerable state and they sat in the hotel room trying to figure out how he was going to get back to Witbank the following day. She testified that “unfortunately we slept together, I was intimate with him that night”.

The Sunday preceding the relevant Monday, before the plaintiff went back to Pietermaritzburg, the plaintiff and defendant also had sexual intercourse.

Sometime after that, the defendant wanted to have a sterilisation done, only to find out that she was pregnant with N.

The defendant discussed the fact that she was pregnant with the plaintiff, he insisted that she undergoes an abortion and they agreed accordingly. The defendant made an appointment for the abortion at the Steve Biko Hospital.

She was shocked by the DNA results, because “I knew him [the plaintiff] to be the father. I did not give a false representation.”.

It was the court’s view that it cannot be found that the defendant made a representation by means of a positive act (a commisio) to the defendant as alleged by the plaintiff. There was consequently no misrepresentation.  The court consequently could not find that the defendant made such representation intentionally while knowing that it was false or untrue.

In addition to the court’s findings that the plaintiff did not prove his claim on the basis of fraud, the court furthermore found that his claim is contra bonos mores and against public policy and can for this reason also and/or in any event not succeed. The plaintiff’s claim was dismissed.