MBABANE – Despite DNA test results allegedly proving otherwise, a secretary employed by a businessman, who is now deceased, reportedly presented her child’s birth certificate to the Master’s Office for the minor to be included as a beneficiary.
As a result, the businessman’s mother approached the High Court seeking an order compelling her late son’s former girlfriend to surrender her minor child for further DNA testing to establish whether the child is biologically related to the deceased businessman.
*Miriam, the mother of the late businessman, wants the court to order the secretary/receptionist to make the child available for paternity tests.
The application follows a dispute over the child’s inclusion as a beneficiary in the estate of the late businessman, who died intestate, meaning he left no Will.
Miriam claims that her late son had no biological children and that an earlier DNA test conducted during his lifetime excluded him as the child’s biological father.
She is challenging the child’s inclusion as a beneficiary after its mother reportedly submitted a birth certificate to the master of the High Court reflecting the deceased as the child’s biological father.
In her founding affidavit, Miriam states that her son was a businessman who owned a plant repair and engineering business.
She explained that *Susan was employed as his secretary and receptionist at one of his businesses.
According to Miriam, her son was previously married, but that marriage ended in divorce following his alleged adultery with Susan.
She states that her son and her former wife had no children and had been advised by doctors that they had no prospects of having children because of her son’s medical condition.
Miriam alleged that around 2018, Susan visited her homestead in Mankayane, accompanied by the minor child.
She said the businessman introduced the child as his own and wanted her to be welcomed at the homestead and introduced to other family members.
However, Miriam claimed that she could tell through observation that the child was not biologically related to her son.
The applicant further alleged that she later learnt that the child had contributed to the breakdown of her son’s marriage.
According to her affidavit, her son’s former wife reportedly informed her that she and the businessman had arranged for paternity tests to establish whether the child was biologically related to him.
The results allegedly excluded the late businessman as the child’s biological father.
Miriam submitted that despite the results, her son continued insisting that he was the father because Susan had convinced him that the child was his.
She said she personally discussed the results with her son, who allegedly acknowledged that the tests had returned a negative result but maintained that the findings were incorrect.
The applicant stated that the businessman died in December 2025, although another part of her founding affidavit refers to his death as December 2024.
Following the businessman’s death, Susan allegedly reported the estate to the master of the High Court and presented the child as the sole beneficiary.
Miriam claimed that a birth certificate was submitted to the Master’s Office reflecting the deceased as the child’s biological father.
She maintained that her son did not have children and argued that Susan was aware of the previous DNA results.
The applicant further stated that the master advised that another investigation be conducted through DNA testing involving her to establish the child’s relationship with the deceased.
However, she alleged that Susan had been hostile and refused to cooperate with the proposed testing.
It is against this background that Miriam approached the court, seeking an order compelling Khumalo to surrender the child for paternity testing on a date to be determined by the service provider.
She also wants the master to accept the DNA results attached to her founding affidavit.
In opposing the application, Susan raised three preliminary points of law and is asking the court to dismiss the proceedings with costs on an attorney-and-own-client scale.
Susan argued that Msibi lacked the necessary legal standing, known as locus standi in judicio, to challenge the child’s paternity.
According to Susan’s notice to raise points of law, the right to dispute paternity or disavow a child registered during a parent’s lifetime is a personal right belonging to the presumed father.
She argued that Miriam was neither the child’s guardian nor custodian and had failed to demonstrate a direct and substantial interest that would entitle her to institute the proceedings.
“The deceased consciously acknowledged the child as his own, registered himself as the father on the birth certificate and maintained the child until his death,” Susan argued.
She argues that the deceased’s acknowledgement established the child’s legal status and that his mother cannot acquire a right to challenge that status following his death.
Susan also argued that the application failed to disclose a valid cause of action because it did not establish a legal basis for compelling a minor child to undergo a second DNA test.
She maintained that the deceased voluntarily assumed the role of the child’s legal and social father, creating a de facto adoption and an estoppel by conduct.
Susan further relied on the Children’s Protection and Welfare Act of 2012 and Section 29(1) of the Constitution, arguing that the child’s best interests must be the paramount consideration.
She contended that compulsory DNA testing could affect the child’s identity, dignity and emotional security.
Susan also argued that Section 17 of the Children’s Protection and Welfare Act guarantees the child’s right to maintenance from the deceased’s estate, regardless of strict biological lineage.
However, in her heads of arguments, Miriam disputed the contention that the right to challenge paternity belongs exclusively to the presumed father.
She argued that she has a direct and substantial interest because she is the biological mother of the deceased and a beneficiary of his estate.
According to the applicant, her interest includes ensuring that the estate is properly administered and that persons who are not legally entitled to inherit are not included as beneficiaries.
She further argues that the Births, Marriages and Deaths Registration Act of 1983 does not make a false registration of paternity conclusive.
Citing Section 15 of the Act, Miriam submits that although the father has primary responsibility for registering a child’s birth, the provision does not establish paternity where a man who is not the biological father is recorded as such.
The matter has since been removed from the roll by consent of the parties. Khumalo Ngcamphalala appeared for Miriam while Nkomondze Attorneys represented Susan.
