IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 2801/10
In the matter between
SOBANTU DLAMINI Applicant
and
MUZI DLAMINI 1st Respondent
PATIENCE PHUMELELE DLAMINI 2nd Respondent
Neutral citation: Sobantu Dlamini v Muzi Dlamini (2801/10) [2012] SZHC 10 (2 FEBRUARY 2012)
Coram: Mamba J
Heard:
Delivered: 2 FEBRUARY 2012
Summary:
[1] The applicant and the second Respondent are husband and wife respectively. This marriage was contracted on 9th September, 1983 in terms of civil rites. The second respondent is the biological mother of the first respondent; who was born on 6th April, 1979 about four years before the said marriage.
[2] The first respondent is now a major. He is self-supporting and is employed as a soldier in the Umbutfo Swaziland Defence Force, which, as it is notoriously known headed by the applicant.
[3] It is common cause that prior to the birth of the first defendant the applicant and 2nd respondent were romantically involved and when the 1st Respondent was conceived, the second respondent informed the applicant of this fact and also told him that he, the applicant had sired the child to be born. Apparently the applicant did not deny this, at least openly to the 2nd respondent. And after the 1st respondent was born, he was presented by the 2nd respondent to, amongst others, the applicant’s mother for her to examine or inspect him in an effort to determine whether or not he was one of ‘them’ i.e. fathered by the applicant. The applicant’s mother’s verdict, it is common cause, was that the applicant was the father of the first respondent. This was done at the Applicant’s parental home at Nkhaba. When the 2nd respondent presented the child as aforesaid, she did so with the expressed consent and or instructions of the applicant upon his return to Swaziland after his military studies is Kenya.
[4] The applicant alleges that:
“9. From day one there has been a dispute whether this child, the 1st respondent, was truly mine. This dispute was handled discretely and quietly at parental level and I was prevailed upon by the family elders to live with it. I have done exactly that and over a continuous period of almost thirty (30) years I have treated the first respondent as my child and he has reciprocated in kind. …
11. I have recently accessed records which confirm that during the period 22nd May 1978 to 30th March 1979 I was attending a military training in the Republic of Kenya, a total period of ten months and one week. During this period I had no physical contact with the 2nd respondent. …
13. Notwithstanding the wedding between myself and the 2nd respondent in 1983, I have continuously protested about the matter and sought the cooperation of the 2nd respondent in getting verification of the paternity, with a view to finding a lasting solution that would put the matter to rest.”
Both respondents, it is common ground, have refused to submit themselves for medical examination and testing to determine whether or not the applicant is the biological father of the 1st respondent.
[5] The applicant makes the allegation that from his calculation based on the data or information at hand, the 1st Respondent must have been conceived whilst he, the applicant was in Kenya and had no physical contact with the 2nd respondent. He avers that it is in the best interests of all concerned that the real truth be known to all so as to “put the matter to rest.” It is based on the above allegations that the applicant has applied for an order; inter alia:
“1.That the Respondents be and are hereby directed and ordered to undergo a paternity test, together with the Applicant, for purposes of verifying whether or not the Applicant is the biological father of the First Respondent;
2. That the test be conducted at the Applicant’s expense, at Mbabane Clinic, within a period of seven (7) days from date of the order;”
[6] The application is opposed by both respondents who argue that it is an abuse of the court process. The 2nd respondent avers that as neither the applicant nor the 1st respondent would suffer if the medical tests are not done or conducted, then there is no reason why the tests should be done at all.
[7] The 2nd respondent states that the 1st respondent was sired by the applicant and that the applicant never denied paternity since he was informed of this fact until 2008 when he filed an application seeking the annulment of their marriage, alleging that the 2nd respondent fraudulently misrepresented to him that he was the biological father of the 1st respondent. Second respondent makes the point that the applicant did not challenge his mother when the latter declared, after inspecting the 1st respondent, that the 1st respondent was the biological son of the applicant. Lastly, the 2nd Respondent avers that the applicant is currently living in adultery with another woman whom he desires to marry and that is the reason he has made this application. The 2nd respondent in effect says that the applicant is using the machinery of the court to obtain the evidence that he needs to annul their marriage so that he could proceed and marry his paramour, with whom they have a child. This is a rather startling assertion and I shall return to it later in this judgment.
[8] I should mention here that there were only two points argued before me by the respondent; namely that :
(a) since the 1st respondent was no longer a minor, there was no need for this application and
(b) the court has no jurisdiction or power to compel or order the respondents to submit themselves for the required medical examination.
[9] This application and the order sought herein must be understood and viewed in its proper setting or context. Crucial and fundamental in this setting or equation is the relationship of the parties; in particular that between the applicant and the 2nd respondent. They are a married couple. This is a special relationship. It demands a sensitive and sensible approach to it. Indeed, as pointed out by all the parties herein, the 2008 court application brought in tension and strain within the family. This tension or strain does not only affect the three parties herein, but the rest of the family members, including the 2nd respondent’s people and the other “many children” of applicant. All these people have a legitimate interest to know, not just a curiosity, whether or not the applicant is the biological father of the 1st Respondent. In saying so, I am fully mindful of the strong assertion by the 2nd respondent that whilst she admits that the birth of the 1st respondent occurred about ten (10) months after his conception, there was nothing wrong with this as it is not an unknown biological phenomenon. She said such a thing runs in her family. She states that the birth of the 1st respondent was delayed such that when she failed to go into labour, her father referred her to a traditional doctor who was able to cause or induce her to go into labour, that resulted in the birth of the 1st respondent.
[10] Speaking of the institution of marriage GUBBAY CJ in RATTIGAN & OTHERS v CHIEF IMMIGRATION OFFICER, ZIMBABWE, & OTHERS, 1995 (2) SA 182 (ZSC) at 188, said:
“Marriage is a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life – a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other. Conjugal love embraces three components; (i) eros (passion); (ii) philia (companionship); and (iii) agape (self-giving brotherly love). See T v T, 1968 (3) SA 554 (R) at 555E (1968 (2) RLR 178 (GD) at 180G-H. The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage. See Van Oosten v Van Oosten 1923 CPD 409 at 411; Excell v Douglas 1924 CPD 472 at 476 in fine; and, generally, Schafer Family Law Service sec A3 at 2. …Eighty years earlier in Maynard v Hill 125 US 190 (1887) at 211-12 Justice Field spoke eloquently of marriage as
“…an institution, in the maintenance of which its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress. …It is …a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilisation, the purest tie of social life, and true basis of human progress. …In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than “fatherhood” or “sonship” is a contract.”
These sentiments hold as firm today as they did then.”
I respectfully endorse these sentiments. Where there is lack of trust, there can never be love, companionship, passion and the rest of the marital privileges that are at the core of the marriage institution. These core ingredients or elements of marriage must exist in order to sustain the marriage. It stands to reason in my view that all obstacles or barriers such as lack of trust infidelity and suspicion between husband and wife should be removed. It is in the best interests of all affected by the marriage, that this should be the case.
[11] In the instant case, the applicant has stated his suspicions and the grounds thereof. He has also stated why he needs to know whether or not he is the biological father of the first respondent. I find the submission by the 2nd respondent that this is just a “curiosity” on his part, less than fair. It is certainly ones legitimate right to know who his or her father or mother is, and vice versa. For example, should the applicant die intestate, his relationship with the first respondent will come to the fore. Mr Magagula, Counsel for the respondents acknowledged this problem. He said the solution was for the applicant to go and draw and execute his Last Will and Testament right away. That solves less than one tenth of a percent of the problem, I think; the mistrust, suspicion and speculation remain. These are fuelled and maintained by the lack of knowledge. Scientific knowledge and procedure is there to unravel or solve this conundrum and remove all suspicion or curiosity (as respondents refer to it). It is certainly in the interests of our judicial system and justice that the truth be ascertained in this matter. Justice demands the truth.
[12] The 2nd Respondent’s concern that the applicant wants to use the results of the intended medical tests to support his claim for an annulment of their marriage and thus pave the way for him to marry his paramour, is startling. It is almost an admission by her that the tests will show or prove that he is not the biological father of the 1st respondent. I am, however, not prepared to decide the issue on this point as I believe there are more fundamental and stronger reasons for allowing the application.
[13] Article 27 of the Constitution provides that:
“27 (1)Men and women of marriageable age have a right to marry and found a family.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental unit of society and is entitled to protection by the state.
(4) Motherhood and childhood are entitled to special care and assistance by society and the state.
(5) Society and the state have the duty to preserve and sustain the harmonious development, cohesion and respect for the family and family values.”
It is plain to me that this court has a duty to sustain, protect, preserve the harmonious development and cohesion and respect for the family and family values. This is a Constitutional imperative or obligation. Again, as already stated above, the removal of any cause for mistrust or suspicion in the family, helps in sustaining a harmonious development and companionship between the couple and the family as a whole.
[14] For the foregoing reasons, I hold that the applicant has made out a case for the relief that he seeks in his application. I am aware that, although admittedly in circumstances different from the present, the Orange Free State Provincial Division in South Africa in 1955 in Palmer v Palmer, 1955 (3) SA 56 (OPD) ruled that a husband’s guardianship over his wife “did not give him the right to interfere with her personal freedom to the extent that he can force her to undergo a medical examination against her will, nor will the court make an order compelling her to undergo any medical examination, even though it might appear that such examination would be beneficial to the woman or the joint estate of herself and her husband.” The application in the present case is not based on the right of the husband as the guardian of his wife, to order her to undergo the medical tests. It is based on his right to know whether or not he is the biological father of the 1st respondent. The 2nd respondent has an obligation to disclose any relevant information to the applicant in pursuant of a happy and harmonious family. One of the family values that she is enjoined to foster, defend and protect is the value or culture or virtue of trust and faithfulness. She has not said that she will suffer any prejudice if the application is allowed. Her sole objection is that the medical examination or tests are absolutely not necessary. I have found that they are necessary. I now examine the respondents’ argument that this court has no power or jurisdiction to compel the respondents to undergo the said medical tests.
[15] The rules of court obviously do not expressly provide for every eventuality or relief that a litigant may seek. That, however, does not mean that the court is precluded from granting that relief. This court has a big reservoir of powers outside the rules and the common law, commonly referred to as its inherent powers or jurisdiction. This relates to matters of procedure and practice rather than substantive law. These powers are generally discretionary and the court will invoke its inherent jurisdiction sparingly and in those cases or circumstances where justice cannot otherwise be met or done. This point was, in my judgment authoritatively dealt with in M v R, 1989(1) SA 416 (OPD). The judgment is in Afrikaans but the headnote – reads in part as follows:
“As regards the Court’s power to order the respondent to subject herself against her will to the taking of blood samples, the Court remarked that this was an area of conflicting ideals and interests, viz on the one hand the pursuit of truth and on the other hand the right to privacy of the party who does not want to consent to the performing of blood tests. The Court, however, came to the conclusion that it was within its inherent jurisdiction, as constituting a procedural matter, to order respondent to have the blood tests taken and that she should indeed be so ordered, especially due to the following factors: (1) it was in S’s interest that reliable information was urgently attained to gain clarity on the question of whether applicant was indeed his father; (2) blood analyses being currently performed were indubitably a reliable aid in clarifying a dispute about paternity; (3) the results of the intended blood analyses would be admissible as evidence in a court of law; (4) the public interest and the judiciary’s keen pursuit of the truth in all legal disputes; and (5) the fact that respondent was S’s guardian and was compelled to act in his best interests even if doing so would be contradictory to her own wishes.”
I have been unable to find a local court decision on the point under consideration. The reasoning in the cases cited above and in particular those referred to in M v R, is sound and entirely logical and I have no doubt that it represents or espouses the law in our jurisdiction as well.
[16] For the foregoing reasons, I find for the applicant and grant the following order:
1. The Respondents are hereby directed and ordered to undergo within 10 days from date hereof a paternity test or examination, together with the applicant, for purposes of determining whether or not the applicant is the biological father of the first respondent. The said tests are to be conducted at the Mbabane Clinic.
2. The costs for the said medical tests or examination shall be borne by Applicant.
3. Both respondents are ordered to pay the costs of this application, jointly and severally, one paying, the other to be absolved.
MAMBA J
For Applicant: Mr. T. Mlangeni
For Respondents: Mr. Z. Magagula
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