79

ZIM LAW REV 1989-90

NO PLEASURE WITHOUT RESPONSIBILITY: DEVELOPMENTS IN THE LAW OF

PATERNITY OF OUT OF WEDLOCK CHILDREN

Welshman Ncube1
Introduction

Under both Customary law2 and Roman Dutch common laws3 both parents of a legitimate minor child have
always had the duty to maintain their child, each according to his or her means.4 Under Roman Dutch
commons5 law the parents of an illegitimate child have also always had the duty, each according to his or her
means, to maintain their child. However, until 1982 the father of an illegitimate child had no duty to maintain
his child under customary law.6

In 1982 the Customary Law and Primary Courts Act. No. 6. 1981 was amended7 so that section ’2(4)(b
authorized a community court, notwithstanding anything contained in customary law, to regard the father of a
child as being primarily responsible for the maintenance of that child. With this amendment all fathers of
children in Zimbabwe now have a duty to maintain their children.

This change in law, together with the establishment of community courts which were easily accessible to most
people, allowed many women to mobilize the law of maintenance and obtain maintenance orders for their
children. Many men who had hitherto not been obliged to maintain their children, now found themselves being
ordered by the courts to do so. There followed an outcry from men attacking the laws of maintenance and
paternity and the public began to take a keen interest in the law of paternity. This is exemplified by the
controversy that arose in connection with the case of Mull v Chiwara decided by the Bulawayo community
court.8 In connection with the controversy generated by the Mule case, and when this writer wrote an article in
The Chronicle which sought to clarify the legal issues surrounding the case, The Chronicle9 simultaneously
published a cartoon, by popular cartoonist Boyd Maliki, which depicted a community court presiding officer
sitting behind his raised table on either side of which stood the plaintiff and defendant in a paternity suit. The
defendant was a white man and the plaintiff a black woman who stood on the left of the presiding officer
holding her black child whom she was alleging was fathered by the plaintiff. The caption below the cartoon,
representing the words of the presiding officer directed at the defendant and said to the utter surprise of the
public that sat in front of him, read:”I can see that you are white while the baby is pitch black, but that is no
defence if the woman insists the baby is yours”. Having regard to the controversies that have arisen in
Zimbabwe over the law of paternity and maintenance, it is pertinent to discuss recent developments in the
country’s laws on paternity.

In this regard there are four important decisions that have come from the Supreme Court. These are X v Y
1973 (3) SA 118 (RAD), Green v Shirto 1974 (2) RLR 13, P v C 1978 RLR 80, Theresa Moyo v Morrison
Sifelani S-13-88 (not yet reported) and Runesu Dube v Sarina Masera S-99-88

1
Senior Lecturer, Department of Private Law, Faculty of Law, University of Zimbabwe.
2
See Mafuta v Muketiwa, S - 183 - 87 and Malipiti and Julia v Kandiro,1984 SR 94.
3
See Dionisio v Dionisio 1981 ZLR 118 (A)
4
Woodhead v Woodhead 1955 SR 70 at p72 and Musondo v Musondo 98-85, at p4.
5
See Voet 9.4.10, Crotius 3.35.8, Chirume v Chivishe S-101.87 and Kangausaru v Mares-101 87.
6
Fordson Manduna v Clara Khanye, 1977 AAC 9 and In re Robert, 1953 SR 47.
7
See section 4 of the Customary Law and Primary Courts Amendment Act, No 21 of 1983. Change Act according to
recent changes
8
For a detailed discussion of the controversy surrounding this case see The Chronicle, November 23, 1987.
9
Ibid
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PATERNITY ZIM LAW REV 1989-90

The legal position
In a paternity suit a man who denies being the father of the child concerned can take one of two position: he
can deny that he ever had sexual intercourse with the mother and on that basis insist that he cannot be the
father of the child; or he can admit that sexual intercourse took place between himself and the mother, but for
some reason, still insist that he is not the father of the child.

1) Where there is total denial of sexual intercourse

It is now trite under Roman-Dutch common law that where a man pointed out as the father of a child denies
ever having had sexual intercourse with its the mother, the onus is on such mother to prove, on a balance of
probabilities, that she and the alleged father did have sexual intercourse at the relevant time, that is, at a time
when the child could have been conceived.10

However, notwithstanding the fact that the mother of the child bears the onus of proving sexual intercourse, a
paternity hearing takes the form of an inquisitorial investigation since the court also has an obligation to
investigate the matter at its own initiative and in this respect can “call such witnesses as it deems necessary for
the purpose” of arriving at the truth of the matter. This special power is given by section 3(b) of the
Maintenance Act. Chapter 35 and commenting on it in X v Y (supra) Lewis A J P observed:
“That section contains a special provision enabling the court itself to call such witnesses as it deems
necessary for the purpose, that is to say, for the purpose of arriving at the truth in the inquiry. It will
be seen, of course, that this is a special power in the court itself, which does not exist in an ordinary
civil action where it is entirely up to the parties themselves to call their witnesses and the court itself
has no right mero motu to call witnesses ”11

The importance of this is that a paternity suit is not like an ordinary civil suit and hence it takes the form of an
inquisitorial investigation. Accordingly, the question of the onus resting on the woman to prove sexual
intercourse in a case where the man denies it must be understood within this context. The court can in fact
assist her in discharging the onus resting on her by calling witnesses at its own initiative. The court must thus
carry out the inquiry in detail so as to arrive at the truth and the woman will not be left on her own to discharge
the onus resting on her.

Where the mother of the child has proved sexual intercourse at the relevant time a presumption that the
defendant is the father of the child immediately arises and thereafter the onus shifts to the alleged father to
prove on a balance of probabilities that he cannot possibly be the father of her child. If he fails to rebut the
presumption of paternity he will be found to be the legal father of the plaintiff’s child and thus be called upon
to maintain the child.

2) Where there is an admission of sexual intercourse

This situation arose in Green v Shirto ( supra). P v C (supra) and Theresa Moyo v Morrison Sifelani (supra).
In all these cases, the defendants admitted sexual intercourse but denied paternity for one reason or another.
Green v Shirto
In this case the respondent had applied to the maintenance court for an order that the appellant pay
maintenance for her illegitimate child, whom, she alleged, was fathered by the appellant.

10 See X v Y (supra) at p119, Hodges v Weale S-12-82, Kashiri v Muvirimi S-65-88, at p7, Mountford v Mukukumidzi 1969 (2) SA 56 (RA) at p 57. For South
Africa authorities on the same proposition see Swanepoel 1959 (4) SA 31 at p. 37 and Moodley v Cramani 1967 (1) SA 118, p 119.
11 At p.119. 11. See also Brown v Knight RAD - 27 - 78 (unreported) at p 2 where Lewis AJP observed that in a paternity dispute it must not be “left to the parent or
the alleged parent alone to present the evidence...There is clearly an obligation upon the presiding magistrate in the interests of the child, to ensure that there is a
thorough investigation of the matter....”
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ZIM LAW REV 1989-90

The appellant admitted that he had had sexual intercourse with the respondent but denied paternity arguing that
other men had had sexual intercourse with her at the time of conception and that his own admitted sexual
intercourse could not have resulted in the conception of the child since it took place some 320 days before the
birth of the child.

The trial magistrate had found in favour of the respondent and the appellant appealed. On appeal the court
accepted that other men had had sexual intercourse with the respondent at a time when she could have
conceived but nonetheless confirmed the decision of the trial magistrate observing that:

“It has been proved”12 (sic) against the appellant, therefore, that he did have intercourse with the respondent
and it is trite, and 1 do not propose to refer to authority to support it, that in these circumstances the onus is
on the appellant to show that he was not the father of the child. The mere fact that other men were having
intercourse with the respondent at about the same time is not sufficient evidence to discharge that onus. He
must show, at least on a balance of probabilities (some cases put it even higher than that, see for example
S v Swart, 1965 (1) SA 454, (A) that it was not possible for him to be the father of the child”13 [emphasis
added]

PvC
In this case the appellant, although admitting that sexual intercourse took place, denied paternity on the basis
that the child’s date of birth was not consistent with the dates on which he had had sexual intercourse with the
mother. However, the applicant had elected to be present during the birth of the child, had gone off to register
the baby in his name, had quite happily lived with and supported both the child and the mother and had
vigorously asserted his paternity as well as seeking to obtain custody of the child when the mother took the
child with her when she moved out of the common home. He denied paternity only when maintenance was
claimed against him.

The court was of the view that in these circumstances the appellant ought to be estopped from denying
paternity. In any event, the court observed that the appellant’s admission of sexual intercourse created a
presumption that he was the father of the respondent’s child and hence the onus rested on him to rebut that
presumption. This he had failed to do. In expounding on this legal position Lewis J P (as he then was) quoted
with approval the following often quoted passage from Breach of Promise and Seduction in South African Law
by van den Heever: “ the legal position today is as follows:

i. If it is admitted or proved that the defendant has had sexual intercourse with the plaintiff,
whether only one month or a year before the confinement, and she alleges that the defendant
is the father of the child, he is in law deemed to be the father of the child, even if he can prove
that during the period of potential insemination she had intercourse with other men.

ii. The stuprator is liable for the cost of confinement and maintenance of the child even where
the action on defloration fails or where he proves that the plaintiff at the time of conception
was a prostitute.
iii. The defendant can escape liability on this head only by positive proof ...that the child is in
fact riot his.
iv. The claim for lying-in expenses and maintenance is conceived in the interests of the child,
not the mother, consequently it cannot be defeated by the mother’s unworthiness ...14

12 In fact, it had been admitted by the appellant himself

13 Per Beadle C J at p 14
14 At p 83 A C. The passage comes fmm p 61 of the book. See Voet 3.3.8.
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NCUBE: PATERNITY Z184 LAW RNV 1989 90

Moyo v Sifelani
In this case the respondent admitted that he had had sexual intercourse with the appellant but maintained that
he was not the father on the appellant’s child on the basis that the admitted sexual intercourse had taken place
before the end of whereas the child had been born on November 8. 1979 (some eleven months after the sexual
intercourse he admitted).

The trial magistrate had given judgment for the respondent on the basis that the appellant had failed to
discharge the onus resting on her, which was to prove that sexual intercourse “occurred within the relevant
time when the woman biologically must have been conceived of the child.” In other words, the magistrate’s
conclusion was that the admitted act of sexual intercourse was irrelevant since it had not occurred at a time
when the woman could have conceived the child and thus the onus still rested on the woman to prove sexual
intercourse at the relevant time. This she had failed to do and hence judgment had been gives against her.

On appeal, the magistrate’s conception of the law was held to be “entirely wrong” and “manifestly incorrect”.
The magistrate had relied on a passage from Mayer v Williams 1981 (3) SA 348 at p. 351 for his conclusions.
That passage reads:
“...in the instant case it was incumbent upon the (the woman) to prove on a balance of probabilities that the
respondent was the father”

As the Supreme Court correctly observed in Mayer case there had been no admission of sexual intercourse. On
the contrary the respondent (the man) had completely denied ever having had sexual intercourse with the
appellant. Accordingly, the above quoted passage from the judgement of the court in Mayer v Williams supra.
is only authority for the proposition that where the man denies ever having intercourse with the woman
pointing him as the father of her child, the onus rests on her to prove that the man had sexual intercourse with
her at the relevant time. Only upon such proof will the man be presumed to be the father of the child. In this
respect, Mayer’s case has nothing to do with the issue of onus where the man admits sexual intercourse. After
observing that the magistrate’s conclusion, on the law was a wrong one and that Mayer’s case did not support
that conclusion the Supreme Court went on to expound on what the law of paternity is where the alleged father
admits sexual intercourse. The court began by quoting with approval the following extract from Potgieter J A’s
judgement in S v Swart 1965 ( 3) AS 454 (A):

“In terms of the Roman Dutch law, where a woman claims maintenance for her illegitimate child, an admission of
intercourse, no matter when it occurred, by the man indicated by the mother creates a presumption that the man is
15
the father and it places an onus on him to prove that he cannot be the father.”

The court then observed that the magistrate’s conclusion on the law was:

“precisely the opposite of what Potgieter J A ruled in Swart’s case.... The whole point of Swart’s case ... is that even,
the admission of ‘irrelevant’ intercourse (i.e., intercourse at a time long before or long after the time at which
16
conception must have taken place) casts the onus on the alleged father.”

Accordingly, the court concluded that the:

“true position on the facts of this case is that the onus was on the respondent, the alleged father, to prove on a

15
At p 2. The court further observed that the judgment in Swart’s case has “stood unchallenged fro over twenty years.”

16
At p 3
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ZIM LAW REV 1989-90

17
balance of probabilities that he could not possibly have been the father.’”

Thus the law of paternity provides that where the man admits sexual intercourse whenever it occurred, be it
weeks or years before confinement, the onus rests on the alleged father to prove on a balance of probabilities
that he cannot possible be the father of the child concerned.18

The court also had occasion to comment on the seeming contradiction between the requirement that the onus
be discharged on a balance of probabilities and the requirement that the defendant must establish the
impossibility and not merely the improbability of his being the father of the child. In other words, there
appears to be a contradiction in that although proof on a balance of probabilities will suffice in order to rebut
the presumption of paternity, such proof must relate to a total impossibility that the alleged father could be the
father of the child concerned. The court then explained away the apparent contradiction by giving examples
which demonstrate that while the quantum of proof is on a balance of probabilities, the substance of what has
to be proved/established must be such as to exclude the alleged father from the category of possible fathers.
That is to say the alleged father must establish a defence which, if it were true, would totally exclude his
paternity.19

The court then proceeded to confirm the defences listed in Swart’s case as the kind of defences which, if
proven on a balance of probabilities, would show, that it is impossible for the alleged father to have conceived
the child concerned. Said the court in this respect:

“[He can rebut the presumption] e g. by showing that he could not have had intercourse with the woman during the
time of conception because he was abroad or for any other valid reason, or even if he had intercourse with her but
can prove he was sterile and thus could not make her pregnant; or that by means of a blood test it can be proved that
20
he cannot be the father.”

Conclusion

From the cases discussed above the Roman-Dutch common law of paternity can be summarized as follows:

i. In a case where the alleged father denies totally ever having had sexual intercourse with the
mother of the child the onus rests of the mother to prove, on a balance of probabilities, that
sexual intercourse took place between her and the alleged father, at a time when the child could
have been conceived. If she discharges this onus the alleged father is presumed to be father and
the onus would then be on him to rebut the presumption of paternity by establishing, on a
balance of probabilities, that it is impossible for him to be the father of the child. He can do this
by proving any defence that would be a hundred per cent exclusive of paternity.
ii. In a case where the alleged father admits having had sexual intercourse with the mother, no
matter when that intercourse took place (it may be a week or two years before the birth of the
child) he is presumed to be the father of the child concerned and the onus would rest on him to
rebut the presumption of paternity by providing on a balance of probabilities, that it is

17
At p4
18
See also Spiro, The Law of parent and Child, at p 461 2. See also S v T S-139-88 at 6-8.
19
See p 5 of the judgment, where stated that “suppose a man proves, on a balance of probabilities, that he first met the girl
and had intercourse with her a week before the birth of the child. Once that is accepted, then it must follow that he could
not possibly be the father. He has proved impossibility on a balance of probabilities.”
20
Quoted at p 8
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impossible for him to have fathered the child.21

iii. This he can do by laying down a defence which, if proved on a preponderance of probabilities,
would exclude completely the possibility of his being the father of the child concerned.

It should also be noted that this Roman-Dutch common law is of equal application to customary law. This was
held to be the case in Charles Ndlovu v Mkethwa Ndlovu 1971 AAC 37 at pp 37-38. This incorporation of the
Roman-Dutch common law of paternity into customary law has been confirmed by the Supreme Court in
Runesu Dube v Sarina Masera S - 99 - 88 (unreported) where Gubbay J A, in deciding a paternity dispute
under customary law stated that:

“What is clear on these facts is that the appellant accepted that over the period 1979 to March, 1984 he
and the respondent frequently had sexual Intercourse. The onus was therefore on him to prove that he
was not the father of the two children.”

It should be noted that the incorporation of the Roman Dutch common law principles for the determination of
the paternity of out-of wedlock children under customary law has been necessitated by the fact that customary
law has not developed its own principles for the determination is of paternity since this was not necessary for
the father of such children had no duty to maintain them and hence if was never necessary to legally make a
paternity determination where the alleged father refused to accept paternity.

21
Note, however, that if the admitted sexual intercourse took place after the birth of the child, it would not raise the
presumption of paternity. See X v Y (supra.) at p 120 A where such post birth intercourse did not raise the presumption of
paternity