In a twist on the usual custody battles seen by the courts, a Cape Town man has — from outside the country — won a court order granting the termination of all his paternal rights and obligations and been allowed to petition home affairs to have his details removed from the child’s birth certificate.
After discovering that he is not the biological father of his six-year-old daughter, the man — identified only as VJS — had his ex-wife, SH, personally served with his founding affidavit and court hearing date. She was told he had recently found out about her infidelity and had paternity tests to prove his case.
In his application, VJS asked the court to have portions of the divorce settlement granted by the Western Cape High Court in December 2022 deleted. The paragraphs specifically addressed his obligations to maintain minor child PJH and outlined his access rights.
VJS also asked judge James Lekhuleni to grant him an order permitting him to approach the department of home affairs for the deletion of his name as the father of PJH from both the population register and her birth certificate without the consent of SH, the child’s mother.
VJS works as a project manager for the local guard force of a foreign embassy based in Islamabad, Pakistan. However, he is domiciled in Kraaifontein in the Western Cape.
The court heard that VJS and SH were married in 2012, and had a daughter — PJH — in 2017. However, the marriage broke down after 10 years, and in 2022 the couple divorced.
In terms of the divorce agreement, SH would remain the primary parent, but VJS would retain his rights as the father, and decisions relating to the child would be made jointly. It was agreed that VJS would pay maintenance and keep PJH on his medical aid. To date VJS has complied with every condition.
However, VJS recently came across information that led him to believe that he is not PJH’s biological father and applied to the court to have his parental rights and responsibilities terminated. The matter was heard by the Cape High Court earlier this month and SH failed to oppose it.
VJS told the court that he had come across WhatsApp messages between SH and ‘a Mr MW’. The conversation, he claimed, clearly demonstrated that SH and Mr MW had been involved in an extramarital affair during a period when he was working abroad. The relationship coincided more or less with the PJH’s estimated date of conception. In one of the messages Mr MW asked SH in Afrikaans to “please look after my little girl”.
VJS said SH’s response to the message indicated that she knew that Mr MW was her daughter’s real father.
Before approaching the court VJS underwent two paternity tests. He had one done by LAB DNA Scientific and another by GENEdiagnostics . Both test results showed that he cannot be PJH's biological father.
The court accepted that VJS had successfully shown he was not the biological father and noted that SH had been personally served with VJS’s court application, she had opted not to respond
VJS told the court that he believed that SH and Mr MW intentionally withheld this information from him, presumably to benefit from his maintenance payments. He said that, based on the WhatsApp evidence and test results, he believed he should have no parental rights and responsibilities in respect of the six-year-old girl.
He asked that his divorce order be amended and all clauses relating to his parental rights and obligations be deleted.
“In addition, the applicant implored the court to order that the population register, and the minor child's birth certificate be amended to reflect the true position regarding the aforesaid. He sought leave to do so without the consent of the respondent (SH),” Lekhuleni said.
VJS had a copy of his court application, the date of the hearing, all relevant annexures and the paternity test results served personally on SH. She did not oppose the matter and did not attend the court hearing.
The court noted that because VJS was currently working in Pakistan, his affidavit had not been conventionally attested or commissioned. His lawyer told the court that, because of the secure nature of his work, VJS was constantly being monitored and that any visit by him to the embassy or police station would raise questions that could put his employment at risk, and that he would only be returning to South Africa at the end of the year. He asked that his divorce order, particularly the maintenance clauses regarding the minor child, be dealt with before then.
VJS had his lawyer draw up his founding affidavit on September 5. It was emailed to him while he was with a commissioner of oaths in Pakistan and they entered a Zoom conferencing call with his lawyer in South Africa.
VJS identified himself during the call, produced his identity document to the commissioner, and the lawyer confirmed that VJS was indeed the same person known to him in South Africa. During the call VJS signed the affidavit and all annexures, and the commissioner confirmed with him that he understood the contents of the declaration he was making. He then took the prescribed oath to tell the complete truth as binding on his conscience.
The signed affidavit was then mailed back to VJS’s lawyer who completed and signed the documents, which were then filed with the court after the commissioner of oaths confirmed that — apart from the medium of the Zoom conferencing call being used — every aspect relating to the signing and filing of the affidavit was compliant in law.
The court accepted that the documents had been correctly deposed and granted the remote commissioning of the affidavit.
The court heard how VJS was presumed to be the biological father of the child born during his marriage
“As a putative father, he had full parental responsibilities and rights in respect of the said child as he was married to (SH) at the time of the child's conception and birth,” the court noted, adding that in terms of the Children's Act VJS and SH both hold full parental rights and responsibilities.
The court accepted that VJS had successfully shown he was not the biological father and noted that SH had been personally served with VJS’s court application, she had opted not to respond.
“The sheriff explained to her the nature and the exigency of the application. Notwithstanding, the respondent chose not to attend court. In my view, it is abundantly clear that the respondent knew all along that the applicant was not the father of the child but decided to conceal this information from the applicant,” Lekhuleni said.
“Her communication with Mr MW clearly demonstrates this. In addition, her WhatsApp communication with Mr MW accords with the scientific test results, excluding the applicant as the father of the child. Ostensibly, the respondent hid this information from the applicant to receive maintenance from him. In my view, the respondent's conduct appears to be a paternity fraud and constitutes misrepresentation.”
In granting VJS’s request for the termination of his parental responsibilities and rights, the judge said: “I am mindful of the centrality of the child’s best interests as enshrined in the constitution. However, the applicant has no legal duty to maintain the child. He should not be saddled with the responsibility of paying child maintenance, as the child is not his.”
VJS’s parental rights were immediately terminated, his divorce settlement was ordered to be amended and he was granted leave to approach the department of home affairs.
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