E.A.P v S.W (Appeal) (A115/2025) [2025] ZAWCHC 540 (20 November 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 540 | Noteup | LawCite sino index ## E.A.P v S.W (Appeal) (A115/2025) [2025] ZAWCHC 540 (20 November 2025) E.A.P v S.W (Appeal) (A115/2025) [2025] ZAWCHC 540 (20 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_540.html sino date 20 November 2025 FLYNOTES: FAMILY – Paternity dispute – DNA testing – Admissibility – First test excluded paternity under SANAS guidelines – Second and third tests showed a high probability of paternity – Reliance on SANAS guidelines did not displace probative weight of tests – Legal standard was proof on a balance of probabilities and not scientific certainty – Probabilities favoured a finding of paternity – Appellant’s paternity established on a balance of probabilities – Appeal dismissed. SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) JUDGMENT Not Reportable Case no: A115/2025 In the matter between: E[...] A[...] P[...]                                                      Appellant And S[...] W[...]                                                             Respondent Coram :          LE GRANGE J et MORRISSEY AJ Heard :            15 August 2025 Delivered :     20 November 2025 ORDER 1.         The appellant's late filing of his notice of appeal is condoned. 2.         The appeal is dismissed. 3.         There is no order as to costs. JUDGMENT MORRISSEY AJ Introduction [1]        This appeal concerns the correctness of a finding by the Cape Town district Magistrate's Court, sitting as a maintenance court, that the appellant is the biological father of one Z[...] W[...] ("Z[...]"). [2]        The appellant was unrepresented, both in the proceedings before the maintenance court and in the appeal. Before us he explained that he had received legal assistance from a third party, something that is apparent from some of the documents he has filed in the appeal. [3]        The respondent, Z[...]'s mother, filed a notice to abide the outcome of the appeal. She was represented on a pro bono basis at the maintenance court proceedings. She was unrepresented by the time of the appeal, which she attended as an observer. [4]        The appeal was noted late. Condonation was sought by way of a formal application. There was no opposition and a satisfactory explanation for the delay was forthcoming. That application will be granted. [5]        The notice of appeal raised 17 points of law and 46 points of fact. The appellant's heads of argument indicated that 44 of those grounds should be considered, with the balance effectively being abandoned. [6]        We have considered all the submissions made. In our view, the outcome of the appeal ultimately turns on a relatively narrow compass, namely, the extent to which the maintenance court was entitled to have regard to certain paternity tests the appellant was subjected to. [7]        A core submission made by the appellant is that those paternity tests were never properly introduced into evidence and, even if they were, no weight should have been placed on them because they concern expert evidence which needed to be supported by oral testimony from an expert in order to be admissible. Essentially, the appellant says the tests should have been completely ignored. [8]        That issue is a nuanced one that has made it necessary to quote relatively extensively from the record. [9]        The appellant also challenges many findings the maintenance court made, or failed to make, regarding the oral evidence led. At the risk of oversimplification, the appellant contends that the viva voce evidence did not establish that he was Z[...]'s father on the probabilities. The record and the historic paternity tests [10]      The record runs to just over 450 pages. Much of it comprises the transcript of the proceedings in the maintenance court. The balance comprises the heads of argument filed on behalf of the parties in that court, the judgment appealed against, and 17 pages of documents described in the index as " Documents obtained from the magistrate's record in court file as referred to in her judgment. Not marked as exhibits apart from an exhibit "B" ." [11]      The transcript reveals that the matter has had a chequered history. [12]      From what we can make out, the proceedings commenced in 2016 when the respondent approached the maintenance court. It appears she alleged that the appellant was the biological father of Z[...], and that the court, via a Magistrate Van der Sputy, directed the appellant to submit to a paternity test in order to assist in determining that allegation. [13]      It does not seem that the appellant resisted that direction, if it was in fact issued at all. It appears from the transcript that it was sought because a paternity test done in 2001 had not been undertaken by a laboratory associated with the South African National Accreditation System (" SANAS "). On the face of it, the 2001 test (" the first test ") concluded that the appellant was not Z[...]'s father. [14]      The second paternity test seems to have been done in about April 2017 (" the second test "). On the face of it, that test concluded that"... the probability of EA Page [the appellant} being the biological father of Z[...] is greater than 99.9999%". [15]      It also appears that there was subsequently a maintenance enquiry before a Magistrate Burick (or Bruck, the spelling is not consistent on the record), where the first and second tests were considered. The maintenance court apparently heard evidence from a Dr Marx and a Dr York, who were ostensibly the signatories to the first and second tests respectively. There was possibly also evidence from a representative of SANAS. It seems that the record of that evidence has been lost. [16]      Magistrate Burick appears to have ordered that a third paternity test be conducted. It is unclear why. It may have been because the Magistrate considered that no finding could be made on the first two tests. It was also suggested that the third test was ordered based on evidence from Dr York that more reliable testing could be done. It seems the direction was made shortly before the parties were to make their closing arguments. [17]      The third test seems to have been done during December 2019 (" the third test "). On its face its conclusion was the same as the second test: The probability of the respondent being Z[...]'s biological father was greater than 99.9999%. [18]      It does not seem that any evidence was led regarding the third test prior to the proceedings that are the subject of this appeal. Rather, Magistrate Burick was recused and the matter came before Magistrate Boltman to hear de novo . On 9 September 2022 Magistrate Boltman apparently ordered the appellant to submit to a fourth paternity test. The reason why that direction was made is also unclear, but it may have been because the Magistrate considered that the results of the first three tests were inconclusive. It is not clear what served before the Magistrate in coming to that conclusion. [19]      It seems the appellant instituted proceedings in this court to recuse Magistrate Boltman and to review the direction that he submit to a fourth test. It also seems that both of those applications failed. It is possible that the review did not succeed on a technical basis, namely, the decision should have been appealed. Be all that as it may, it seems that the matter was then allocated to Magistrate Lawrence, the author of the judgment now appealed, to hear de novo . It is not clear from the record why a de novo hearing was directed, or by whom it was directed. Magistrate Lawrence states in her judgment that " ... the office directed me to hear the case afresh ". It may be that that a de novo hearing was convened because the record of the previous proceedings could not be located. The proceedings subject to appeal [20]      The transcript forming the appeal record begins on 25 September 2024, which appears to be the first substantive involvement Magistrate Lawrence had in the matter. On that occasion the court was hearing argument about whether the appellant should submit to a fourth paternity test. The appellant resisted that direction. The respondent's representatives said it should go ahead, and had to go ahead because Magistrate Boltman had previously issued an order to that effect. [21]      It is convenient to set out part of the exchange between the appellant and the court as to why he considered he should not be obliged to submit to a fourth test: " MR P[...] ADDRESSES COURT :  Your Worship, I have written down my stuff Can I read from there so that I do not miss anything out? COURT : You are most welcome to do that. MR P[...] : Can I give you a background of .. [incomplete] COURT : You can do what you ... [intervenes] MR P[...]: Okay. COURT : Just remember the purpose - the issue here is why you do not want a fourth blood test, okay. MR P[...]: Okay. COURT : Keeping in mind that is something a previous magistrate requested. MR P[...]: Okay, I do keep that in mind, Your Worship. You Worship, as Your Worship should now the indicator that I was ordered by the Court for a fourth DNA test whereby I put myself available three times already. I have now come to learn that an previously it was not done that my rights was read out to me properly in the sense of that I can or I may refuse to go for a DNA test and that with further hearings my credibility will be held or in accountable. That only came to me now with my latest research and I was never ever told that that is the case that I may refuse to go. COURT : And what would your reasons be for that, sir? Let us place that on record. MR P[...]: Your Worship, we have-the tests that we have done before was in 2002 there was a test done and fathership was excluded. COURT : Correct, okay. MR P[...]: Another test was ordered where it was inconclusive. COURT : Which year was that? MR P[...]: Your Worship, that was in the year 2016/2017. That is 14 years after the initial test was done. COURT : What was that result? MR P[...]: That was inconclusive, Your Worship. COURT : Based on what? MR P[...]: Based on the statistics on the DNA report based on what the notes were on the report. COURT : Are you in a position ... [intervenes] MR P[...]: And the exclusions that was on there. COURT : Are you in a position to read out that note? MR P[...]: Your Worship, I do not have it with me. This is what Mr Mapara [the maintenance officer} has. We did not prepare for this. Otherwise I would have brought the necessary documents with. COURT : It is fine, sir. We will - it is not a problem. Is that the document that you want to read from that was handed to you now? MR P[...]: Your Worship, no, this is the covering document of the said test. The test has got all the scientific details on there and there it... [intervenes] COURT : Remember you said it is inconclusive. MR P[...]: Yes. COURT : I want you to read the part that you said is inconclusive. MR P[...]: Yes. Your Worship, I refer to the SANAS guidelines. COURT : Okay. MR P[...]: And which Ido not have in front of me, but there is a SANAS guideline that says if there is two or more exclusions it shall state that paternity is excluded. COURT : Ja. MR P[...]: Which this test did not state. COURT : Okay. MR P[...]: That was clarified. It was worked through. The after that there was also a letter from the specific MDS, that is Molecular Diagnostic Services, that is the lab that performed it, where the director, Dr York, sent a letter through and said - I just want to go through this second the second page that is on here. I do remember what it says, but I want to see if I can read it out for you if I find it here because the documents are probably all in the court file. Two seconds. This is not the one I was looking for, but it does state on there on that specific letter the result generated - this is now the cover letter that says: "The results generated by MDS tests probability of paternity of alleged father against an unrelated man. If a close relative or alleged ... [incomplete] Okay, that is just a normal recommend, but there is a letter that the doctor said: "I do not state that Mr P[...] is the father. That a close relative or random man can also be the father should he be tested. " COURT : Are you making - I understand you to say that is what the doctor is saying, but are you also making that allegation? MR P[...]: Your Worship, yes, and through all the tests that were done and this is not - what I do not know if I can do, but going back into the previous evidence that there was not a finding made on that specific test. COURT : Correct. MR P[...]: And then we have heard evidence and after the evidence which was all clear at the time, the magistrate could not do a finding and then ordered the third test. That is when we were about to do closing arguments after all the professional doctors, SANAS, everybody came for evidence and personal witnesses as well and then the order was just made for a third test. COURT : Was the third test done? MR P[...]: Ja, the third test was done. I submitted myself again for a third test. COURT : And in which year was that, meneer? MR P[...]: That was in 2019. COURT : And you have a copy of that result with you as well? MR P[...]: That is in the court file, Your Worship. COURT : Okay, we will - the maintenance officer will assist for you with that. MR P[...]: And that test was inadmissible, Your Worship. COURT : Why do you say that, meneer? MR P[...]: MDS was again involved in the test. It was then - but they did not do the scientific testing. They took it upon themselves to take the test results and put it on their own letterhead, which is sort of fraudulent, and present it as their own test. MAINTENANCE OFFICER : Can I ... [intervenes] MR P[...]: Bearing in mind, Your Worship, that all the tests that were done all had the same exclusions on there and on top of that there were ands and if/ors. So there were more calculations on there that says it can either be this one or that one, or there can be a mutation on certain others. COURT : Is that the 2019 test? MR P[...]: 2019 and the previous one prior to that was also the same, it also had exclusions on there. COURT : Okay. MR P[...]: And that was deemed inadmissible. COURT : Why do you say it was inadmissible, was that a ruling the Court made? MR P[...]: Mr Mapara can answer for that. COURT: He will address the Court on that. MR P[...]: Ja ... [indistinct]. COURT : Okay, anything else, meneer? MR P[...]: Your Worship, then in the same breath I just want to say as I said previously, I have put myself through this three times for tests and it was never - my understanding now is that when an order like that goes out I can be warned that should I refuse that my credibility throughout the hearing can be disregarded or tainted or whatever. And it is upon that that I am saying I am not going for a fourth one, Your Worship." [22]      The maintenance court ruled that the appellant did not need to submit to a fourth test. Essentially, it found that no other court hearing the matter had made any findings on the tests that had previously been done and that the maintenance court should thus have the opportunity to do so. Some extracts from the ex temporae ruling read as follows: "No findings were even made on those tests in terms of how the Court must accept it into record or not. According to the information received by the maintenance officer, by Mr P[...] and by yourself, Mr Joubert [the representative of the respondent}, we all agree that it is not in dispute that no findings in terms of admissibility was made in respect of the scientific tests. The Court must be awarded an opportunity to make those findings on its own. … There were no findings made on that test and the Court should be given an opportunity to do that using the Maintenance Act and the Children 's Act together. So in respect of the finding whether Mr P[...] must go for a fourth blood tests. The Court is not going to grant that and the request for the fourth scientific test is not granted, we will continue with what we have. That is the final order of this Court in respect of the fourth test. The Court is then ready to proceed in terms of making finding on what the maintenance has to present to this Court." [23]      The balance of the transcript concerns the evidence of the respondent and the appellant regarding the question the maintenance court was considering, namely, whether the appellant was Z[...]'s biological father. We deal with that evidence later. For present purposes it is noteworthy that the three tests referred to above were discussed in the evidence. While the appellant did engage with them, he consistently said that questions regarding their utility were questions that needed to be directed to experts. The status and admissibility of the paternity tests and other documents [24]      No expert evidence was led at the hearing. However, after the evidence was concluded and dates had been discussed for the filing of heads of argument, the following occurred: COURT : And then, is there anything else before we read out the postponement date that you would like to hand in to the Court? MAINTENANCE OFFICER: Yes, Your Worship, /would like to hand the paternity tests results for 2001 and 2016. COURT : Okay, and what happened to the 2019 results? MAINTENANCE OFFICER: I do not know, Your Worship, whether I should hand that one in. COURT : The Court will make a decision about that. MAINTENANCE OFFICER : Alright. MR P[...]: Sorry, Your Worship. Can I also hand up my pack? COURT : Yes. MR P[...]: The main reason/or it is that there was a time when the file was in disarray. That is why I just want to hand up mine. COURT : Okay, you can do that. It should be in there. Did you already submit it into the maintenance officer's file? MR P[...]: I do not know if it is there Your Worship. COURT : Okay, we will check quickly. MR P[...]: It is a different set of documents that I just want to [indistinct} COURT : Is the 2019 results attached to that? MR P[...]: Yes, Your Worship. COURT : Can I just look at that and then if it is the same. /just want to have a look quickly and then I can confirm if it is here, otherwise you are going to have to have a look. It is here. MAINTENANCE OFFICER: Okay. COURT : From your side, meneer? MR HILTERMANN: [the respondent's representative} Your Worship, would it be possible to also have a copy of that? COURT: The results? MR HILTERMANN : Yes. COURT: Okay. MR P[...]: I can give him a copy. COURT: Okay,just check there because according to the knowledge of the Court now what he is speaking about - okay, I do not see - it is just before the SANAS letter marked 3 December. Okay, and then we have the 11 April 2017 result which we refer to as the 2016 in the testimony and then let me just make sure. Oh, the 2001 results, I have that and I have the 2016 and the 2019. Okay. You have everything there, meneer, that you requested? MR HILTERMANN : I believe so, Your Worship. COURT:· The Court then postpones this matter to ..." [25]      The appellant dealt with the three tests in the heads of argument he filed with the maintenance court. They were also included in a bundle of documents he submitted with those heads. Those heads contained the following submissions: "The legal representative and the maintenance officer referred to the DNA tests which were performed in this matter. I will deal with these and refer to the documents which are in the court file and compiled in a bundle prepared by me in support of these heads. It is clear from the applicant's legal representative and the maintenance officer's questions directed to me that they both rely on the Second DNA test, which was issued by MDS and is dated 11 April 2017 .... MDS also furnished a third DNA test in the matter dated 3 December 2019. Attached to this third test is an email, dated 4 December 2019, which I have referred to in my evidence and it is to this email I wish to refer to as a point of departure because this email is sent by Dr York, who has issued both the second and the third DNA results. This will illustrate clearly my submissions that Dr. York and MDS' findings in both tests should be rejected. The email is dated 4 December 2019 from Dr Denis York to various persons including Mr Mapara. The email can be found on page 10 of my bundle." [26]      The relevant part of Dr York's email of 4 December 2019 reads as follows: "Please note that there was a delay in the arrival of the new paternity kit that we were going to use to analyse the extra loci . In view of the delay I decided to courier the recently collected samples from the clients in this case to an ISO 17025 accredited laboratory in Germany as they were able to analyse the extra loci . I was assured that the results would be ready by the 3 rd December in time for the next court date ... We received the results but the results are in German so we decided to incorporate their result into our report (please see attached). In total 29 loci were analysed (8 more than the number we analysed and nearly 3 time the number analysed in the first report). The calculated probability of paternity is greater than 99.9999% even taking into account the two previously identified loci where there is a single allele mismatch. No additional mismatches were detected in the additional loci tested." [27]      The appellant identified three difficulties arising from that email in his heads of argument filed with the maintenance court: "The first problem I have with what is stated by Dr York is that if the results were sent to a German Laboratory, that laboratory would have used a database for population groups in Germany. This is contrary to 3.8.1 of the SANAS Technical requirements on page 17 of the bundle, which stipulate that the laboratory SHALL use population data for the relevant population groups. The German laboratory must have used their German database which is not applicable and relevant to this case. The second problem I have with what is stated by Dr York is that MDS did not do the analyses but presents the findings of another laboratory by incorporating it into their report. This constitutes fraud and is unethical conduct by Dr York and his laboratory. This is also not compliant with the evidential requirements of documentary evidence, since it is not an original report firstly, and secondly, the information included in this third result, does not fall within the personal knowledge of Dr York. No mention is made of who translated the DNA result from German into English. No mention is made of the "courier" and whether the technical requirements were complied with as far as this is concerned as per 3.7.2 on page 17 of the bundle. … As a result of the inadmissibility of the third result, the unethical and dare I submit fraudulent conduct of Dr York and his laboratory, I submit that both results, including the second DNA result (which I submit is in any event inconclusive), from Dr York and MDS are unreliable, and I respectfully request that the honourable court rejects both the DNA results from MDS on the basis of their unethical practices described hereabove alone." [28]      The appellant's heads in the maintenance court went on to submit that the second test was inconclusive. In doing so the appellant referred to another email from Dr York, dated 10 February 2018 and which the appellant described as giving " ... a clearer understanding of the test result ". [29]      What follows is an extract from the 10 February 2018 email, which was also discussed in the evidence: "In essence there are two mismatches between Mr P[...] and child Z[...]. Normally two or more mismatches are excluded however other factors need to be taken into account. Mismatches can be due to the fact that the person is not related. However, they can also result from natural mutations which is likely they cause here because they are single step mutations and also based on the additional loci we analysed. Mutations (changes in the DNA) occur naturally and randomly at different rates at different parts of our DNA - the fact that mutations occur is the reason we can use these segments of DNA for identification purposes - so you can have a situation where one of the alleles that is expected in the true biological fathers DNA is not present. However two is not common although in this case one mutation might be from the father and the other from the mother. Another explanation for the mismatches could be that the alleged father is indeed not the biological father but a brother or close male relative of the true biological father. We therefore state that our calculations are based on the man in question is a random man (not a close relative) and that should a close relative exist who could be the biological father then that male should also be considered and tested. The situation where the profile of the alleged father (with two or more mutations) is actually not the biological father could also occur more frequently in communities where there are relationships amongst very close relatives. However, analysing more loci improves the power of the paternity. In the case of this paternity we analysed five additional loci (a total of 20) and reported a probability of paternity of > 99.9999% which is convincing. However, it still remains that with two mutations one does need to consider other close male relatives and if they exist they should be tested. " [30]      The appellant's heads in the maintenance court went on to make the following submissions: "I submit that the above statements made by Dr York in this email show that the result presented in the second test include all the above findings. It is thus not a clear finding in that the possibilities or probabilities mentioned hereabove form part of the finding. In other words, the finding made in the second test it could be that I am the biological father, or it could be that a close male relative could be the father and I am not the biological father, or that it could be that there are mutations, or that existing possibility that there may have been close relationships in the community. I therefore respectfully submit that the result in the second DNA test is in any event inconclusive since the finding includes too many probabilities." [31]      The appellant also drew attention to another letter Dr York authored, and to other criticism he made in respect of the second test in the heads he submitted to the maintenance court. [32]      The maintenance court considered the three tests in its judgment. It concluded they had been submitted without objection, save for the appellant's submissions as to the content of the second and third tests. It also made reference to section 12 of the Maintenance Act, 99 of 1998 (" the Maintenance Act ") and to section 22 of the Civil Proceedings Evidence Act, 25 of 1965 (" the CPEA "). Although not entirely clear, it seems the maintenance court may have considered that the three tests could be introduced by relying on those statutory provisions. [33]      The maintenance court ultimately disregarded the third test, largely given its lack of knowledge regarding the concerns the appellant raised about it being done in Germany that we have cited above. The court went on to say the following about the first and second tests: "The court is satisfied that the second test done in 2016 complied with high standards of probative value as the Molecular Diagnostice [sic] Service is SANUS approved, with strict procedures and standards; the same cannot be said of UNISTEL [the laboratory that carried out the first test]. The respondent also failed to rebut the prima facie proof of the 2016 results delivered, and his objections raised in this test cannot succeed. The fact that more markers were used in the second test is of value in reaching a more accurate result. In light of the above, the court found that the probative value of the second test was far greater than that of the 2001 test." [34]      On appeal the appellant submits that none of the documents constituting the reports of the first to third tests ought to have been admitted by the maintenance court. He also submits that, even if those documents could be admitted, nothing can be derived from them because they are at best unverified expert opinion. The impact of those submissions is that the maintenance court should have entirely disregarded the three tests when coming to its conclusions. [35] Section 10(5) of the Maintenance Act states that except where specifically provided, the law of evidence, including the law relating to the competency, compellability, examination and cross-examination of witnesses, as applicable in respect of civil proceedings in a magistrate's court, shall apply in respect of a maintenance enquiry. [36]      Instead of calling Dr York to testify, the respondent's former representatives sought to rely on his correspondence, including that of 10 February 2018 cited above. The following extracts from the cross-examination of Mr P[...] shows that those representatives considered that that was insufficient evidence to enable the court to deal with the DNA evidence before it (the exchanges were lengthy and the account below is abridged): " MR P[...]: Mr Hiltermann- Your Worship, Mr Hiltermann is asking me questions with regards to scientific tests that were done and I do agree that I did mention them and I did mention the exclusions and I said that is exactly what I have learnt over this period of time, but I do want to take Mr Hiltermann just back because he is looking at a test - can you just give me one second, Your Worship? !just want to find the proper documentation here. So, from - and this was in - this was 10 February 2018 from Dr Dennis York and I just want to quote part of his email that I want to read out. He says: [Mr P[...] quote extracts from the 10 February 2018 email] And then that is an email, Your Worship, and then there is a letter that Dr York sent again and I think it is on the file. Mr Hiltermann, I think you have it. You mentioned it when we were here the last time where he is saying, 'I do not state. - "We do not state the Mr P[...] is the biological father of Z[...]" Once again, you cannot just bluntly look at what the - what the piece of paper what they state on there. It should be analysed by the experts and then they can explain to you. MR HILTERMANN : I agree. MR P[...]: That is the emails that we received from the doctor. MR HILTERMANN: Yes, so in regards to Dr York's letter and his evidence dated 1 June 2017 it was an annexure to Magistrate Boltman 's recusal application and your submission is that, and I agree with that, that we are not experts in this DNA field and we must rely on experts in this regard and in this [indistinct] I rely on Dr York's evidence and where his submission, you know, it states whilst two mismatches were detected, his submission as an expert is it would be incorrect to automatically exclude Mr P[...] as being the true biological father, especially as calculated the probability of paternity is greater than 99.9 percent. This is greater than the 99.8 percent cut-off in the SANAS guidelines ... So Mr P[...], I put to you that would it not be correct to rely on the experts' evidence, Mr York in this case, as a basis for assessing the reliability of and reliance to be placed on this 2016 test? MR P[...]: I just want to quickly answer on the latter part. I just want to start there. Magistrate Boltman did not hear any evidence. I know that she mentioned there about evidence. She did not hear any evidence. This case was never really before her. She looked at paperwork and then made a decision. However, let us quickly go back again and we are just going to go to the 2016 test as you refer to Dr York saying all these things. Dr York came and he testified. Unfortunately, Mr Hiltermann, you were not there, Your Worship, and more things came out. More things were broken down scientifically and then, as you say, it is a blanket statement. He also made a banket statement by saying he exceeded SANAS regulations. We also had SANAS here testifying, so we had all the experts and there is a reason, Your Worship, that we went through that whole testimony of Dr York and that is why I say his testimony - ach, his credibility is tainted for what he did and the way he answered things because it is only how he wanted to do things ... [There then followed an exchange about the conclusiveness or otherwise of the second test} MR P[...]: It is inconclusive because that paper you are reading from, Mr Hiltermann, was prior to Dr York's testimony. When Dr York came to testify the test was broken down scientifically and that is where we came to the inconclusiveness of that test. MR HILTERMANN: Thank you, Mr P[...], and it was on your basis of objecting to this test that a further test was ordered. Is that correct? MR P[...]: Uhm, no, I did not object to that test why the third test was. After evidence was led, after the scientific evidence was led, after the test was broken down a mero motu from - a mero motu order from Magistrate Bruck was just made, go for another test. I could not understand at the point why because it was clear. I had an attorney at that point and he wanted to speak to the magistrate and she said no, that is final and that is it. Uhm, that is it. MR HILTERMANN: You see, Mr P[...], you mentioned this report of Dr York's amended conclusion. Do you have knowledge of where this report is located? I say this under the context of Magistrate Bruck's recusal ruling which stated the numerous attempts where you [indistinct] undertook to try and gain access to the contents of the record of this matter with yourself and your previous attorneys and we had experienced great difficulty in this regard and it appears that, you know, we are still hamstrung to a certain extent by the lack of delivery in this regard ... MR P[...]: Okay, Mr Hiltermann, I was ordered to hand over transcripts of the record at my cost to the complainant. I paid R2 000 for one page, so there was a system error. That is all I can think but we went back and forth and back and forth to the extent, Your Worship, that I was almost treated like a criminal ... MR HILTERMANN : So, Mr P[...], are you aware that the applicant's attorneys came on record on a pro bono basis after all the evidence from the relevant medical experts and including Dr York was already heard by Magistrate Bruck. Can you confirm that? … MR HILTERMANN: Mr P[...], are you aware that after the applicant's attorneys came on record all requests to obtain the court record with the testimonies which was heard did not yield any results in that the record could not be found and this could not be transcribed? MR P[...]: I believe the record could not be found, ja. MR HILTERMANN : Okay. So then on this basis of incomplete information surely you must concede that there are reasons why this Court is not actually fully able to consider the DNA tests in conjunction with the evidence that was given by the medical experts who interpreted the tests? … MR HILTERMANN : Mr P[...], I acknowledge that and I am not here to allege blame in that regard. I merely want you to submit that the position is currently that for whatever reason and for whoever 's fault it may be we are currently in a position where the Court is not able to fully consider these DNA tests in conjunction with the evidence that you have previously mentioned and given by the medical experts interpreted and testified to these tests. MR P[...]: I cannot agree. I cannot agree with that statement, Your Worship. We currently have three tests on record. The first one, which says paternity excluded. Nothing wrong with that test. Absolutely nothing wrong with that test." [37]      Without more, and ignoring statutory provisions dealing with specific circumstances, documentary evidence will only be admitted as evidence where the original document is produced and its authenticity is established. [38]      Authenticity essentially means establishing what the document is and that what is handed in has not been altered. In a straightforward case those requirements are established by calling the author of the document to testify as to its originality, what it is (for example, a letter written on a particular date) and that the writing has not been altered or tampered with. [39]      The mere admission of a document into evidence does not entail admission of evidence as to its contents. For example, the admission of a letter recording that certain events occurred will not constitute proof of those events. At best, it will establish that the author wrote about them on a particular date. [40]      The mere admission of a document may however have probative value. The most obvious example is where the signing of a document has a legal implication in and of itself. Examples of this might be the conclusion of a contract or the execution of a will. But the admission of documents can also serve to introduce evidence of a contemporaneous nature that may be relied upon to buttress other evidence before the court. [41]      For example, a letter that is admitted into evidence and which records that on a certain date the author saw a certain person at a certain place can serve to buttress oral evidence from the observed person that they were at that place on that date, even if no one is called to confirm the facts set out in the letter. [42]      That is because the contemporaneous nature of the letter tends to support the probabilities of the oral evidence being true. The weight of that evidence will depend on the circumstances. For example, if the letter is written after the relevant person's whereabouts on the day in question have become contentious, or the author is somehow associated with that person, the mere admission of the letter may have virtually no probative value. On the other hand, if the letter was authored by an independent third party at a time when the relevant person's whereabouts were uncontentious, it might well be relied upon by that person to buttress their evidence as to their whereabouts on the relevant day. A similar situation pertains to correspondence authored by an opposing party: The fact that a defendant authored a letter confirming they committed an unlawful act might be relied upon by another as evidence that the defendant did so, even if no other evidence is led as to the accuracy of the contents of that letter. [43]      The strict principles regarding the admissibility of documents are often not enforced by litigants for reasons of practicality, at least in civil cases. Matters involving large volumes of correspondence that is not really contentious would be unduly drawn out if every document had to be individually proved. In many cases parties will conclude an agreement as to the status of documents that have been discovered or that are included in a trial bundle. Typically the effect of those agreements is to impose a default position that all documents may be admitted, while reserving to the parties a right to challenge those they consider are contentious. [44]      Expert evidence can broadly be described as an exception to the general rule that opinion evidence is inadmissible. Essentially, such evidence is permitted where a court requires assistance in areas of expertise it does not possess in order to determine an issue before it. The wide extent of specialised knowledge in modem society means that expert evidence is often required. For example, a court may require input from structural engineers to understand why a building collapsed, from doctors to understand the time a person died, and even from lawyers to understand foreign law. To avoid parties being taken by surprise, court rules require that parties in civil cases who intend to call expert evidence must give notice of their intention to do so, and to provide a summary of the relevant expert's opinions. [45]      As submitted by the appellant in his heads of argument, a court will be guided by expert evidence but will not be led by it. The ultimate determination of a case remains the function of the court, and while it is required to weigh expert evidence in the course of its decision, it does not delegate its decision-making function to the experts that appear before it. In contested cases that may involve the Court preferring the evidence of one expert over another. Conceptually, such a decision involves a court taking a preference on matters of opinion, not matters of fact. Those disputed opinions are adjudicated by hearing testimony from the experts, with their views being tested by cross-examination. [46]      Practical considerations also apply when it comes to expert evidence. Courts encourage the limitation of disputes on matters of opinion between experts, and experts often meet before a hearing to seek to find areas of agreement. That agreed matter is then taken out of issue and will typically be accepted by the Court without further investigation. [47]      The results of the three paternity tests and the emails from Dr York referred to above are all documentary evidence. [48]      Each paternity test records the results of the application of a scientific process on a certain date to specimens purportedly provided by the appellant, the respondent and Z[...]. They also contain an opinion on those results, namely, the likelihood of the appellant being Z[...]'s biological father. [49]      For the most part, Dr York's email of 10 February 2018 constitutes an expert opinion on the results of the second test and why a mismatch of two loci does not serve to mean that the appellant cannot be Z[...]'s father. On the contrary, the email concludes that the testing reveals that it is highly likely that the appellant is Z[...]'s father. [50]      Although no witnesses were called to testify as to the originality and authenticity of the those documents, we do not consider the maintenance court was precluded from admitting them into evidence. [51]      As we have shown, there was never any dispute that the three tests had been undertaken on about the dates indicated or that Dr York sent his email to the maintenance officer on 10 February 2018. Except possibly in respect of the third tests there was also no serious dispute as to the outcome of the scientific testing, in the sense that that testing identified similarities and dissimilarities between the genetic material submitted by the appellant, the respondent and Z[...]. [52]      Moreover, and as appears from the lengthy summaries of the record we have set out above, it seems to us that throughout the proceedings the appellant clearly indicated his satisfaction that the Court could have regard to those documents. [53]      Not only did he refer to those documents when motivating why a fourth test should not be ordered, he made no objection when the Maintenance Officer handed up the tests at the end of the proceedings. On the contrary, the appellant handed up his own ''pack" of documentation, and also included the test results in the pack accompanying his heads of argument, which heads discussed the tests at length. The appellant also discussed the tests in his evidence, including the evidence that was led regarding them before a previous Magistrate, and at one point said that there were three tests on record. Such conduct would leave it in no doubt to the maintenance court, the respondent and the maintenance officer that those test results were to form part of the record. [54]      The appellant's reliance on the three tests must also be considered in the greater context, namely, that the testing was directed by the Court. As the party directing the testing be undertaken, it would have been strange, absent a formal objection to their inclusion, if the tests did not form part of the record. [55]      In our view it is not open for the appellant to contest the admission of those documents on appeal, or to aver that the court should have determined the matter as if they were not before it. [56]      Whether everything said in those documents must be accepted by the court is a different enquiry. [57]      As we have said, the fact that the three tests took place, and the approximate timing thereof, was common cause from the oral evidence. However, and as indicated, the documents do more than merely provide evidence that paternity testing occurred. They also reveal the results of those tests and contain an expression of an opinion on what those results mean in the context of whether or not the appellant is Z[...]'s father. [58]      It was really the latter question that was in issue before the maintenance court. That is appropriately described as a question of expert evidence. [59]      Succinctly stated, the appellant relied on the fact that all three tests revealed a mis-match in two loci tested. The appellant placed importance on that because the SANAS requirements state that paternity shall be excluded if there is a mis-match between two or more loci . The 10 February 2018 email from Dr York acknowledges that the first and second tests identify a mis-match between two or more loci, but says that that does not necessarily mean the appellant is not Z[...]'s father. The appellant relied on that email to contend that there is insufficient certainty from the testing to conclude he is Z[...]'s biological father. He also said there was evidence of fraud on Dr York's behalf. We do not consider that that allegation is fairly drawn on the papers the appellant relied upon. [60]      The appellant also relied on other factors, such as his contention that because the laboratories that conducted the second and third tests were not based in the Western Cape, they considered the test results against an inappropriate population group. [61]      Insofar as the appellant contends that the maintenance court was precluded from accepting as evidence the expert conclusions in the test results and Dr York's email of 10 February 2018, we consider that submission is correctly made. [62]      Such an approach is appropriate because it provides safeguards to prevent a court relying on untested evidence. For example, we know that Dr York previously testified in the very same matter as regards the second test. As we see it there is no meaningful indication in the transcript as to why he was not called when the matter was heard again, and he was thus a competent and compellable witness. For all we know, Dr York might have refused to testify because he had adopted the position that the views expressed in the second and third reports or his emails would not withstand scrutiny. Alternatively, it might be that he was not called because the respondent was unable to cover his fee. There are any number of possibilities, and the way to circumvent them would be to call Dr York to explain his views, or to at least explain why he was not being called. [63]      We nevertheless consider that the test results and Dr York's email of 10 February 2018 may have some probative value purely as a result of those documents being admitted into evidence. [64]      That DNA testing can reliably be used to determine paternity is a fact so notorious that a court may accept it without evidence. This is underscored by the fact that courts may direct such testing to take place in cases where paternity is disputed. There is no obligation on a party seeking such a direction to lead expert evidence to show that it may assist in the determination of that question. [65]      On the face of it, the test results reveal that such testing was undertaken (something that was in fact common cause). [66]      They also reveal that the first test excluded paternity because there were mismatches in respect of two loci ; that the second and third tests also showed such a mismatch but nevertheless concluded a high likelihood of the appellant's paternity; that, save in one respect, all three tests produced the same results for the common loci tested (the second test tested more loci than the first, and the third tested even more); and that Dr York considers that the two loci mismatch nevertheless leaves it highly probable that the appellant is Z[...]'s father. [67]      Those considerations render the test results and Dr York's email similar to the contents of the letter in the hypothetical example given above, i.e, where that letter is admitted into evidence without the contents being proved: The fact that an accepted approach for determining paternity produced a result indicating that there is a material commonality of genetic material between the appellant and Z[...] may serve to augment other evidence placed before the court regarding his paternity, even if the court does not accept the expert evidence embedded in the test results and in Dr York's email. [68]      Stated differently, while the question of whether the appellant's paternity was established to the extent required by SANAS or the scientific community generally could not be established on the mere admission of the test results and Dr York's 2018 email, the admission of those documents could be used to buttress other evidence that the appellant was Z[...]'s father because they prima facie indicate that the appellant and Z[...] are related. [69]      To be clear, we agree with the appellant's submission to the effect that contested expert evidence should typically be given viva voce. We are also not to be seen as suggesting that a party who intends to rely on expert evidence can do so upon reliance on an expert summary without leading the expert in question. We are simply saying that, in civil cases where a court is presented with expert evidence constituting the results of an accepted scientific technique or commentary thereon, it may in appropriate circumstances be relied upon to buttress other evidence aligned to such results. The extent to which a court may do so will depend on the facts of the given case, and typically a party would be best served by calling evidence to confirm the results of the tests in question. [70] Section 12(3) of the Maintenance Act makes special provision for the admission of statements in proceedings before maintenance courts. It provides that: "Any person against whom a maintenance order may be made under this Act may before or during the enquiry come to an arrangement with the maintenance officer that any statement referred to in subsection (1), notwithstanding the fact that it was not served on him or her in terms of subsection (2), may be submitted as evidence, whereupon such statement may on its production at the enquiry be admitted as evidence in the enquiry. " [71]      Although both parties claimed to rely on the content of Dr York's email of 10 February 2018, that was arguably inadequate to constitute the sort of agreement contemplated in section 12(3). We also agree with the appellant's submission that the requirements of section 22 of the CPEA were not met in this case, either with regard to the results of the three paternity tests or Dr York's email. [72]      We thus respectfully differ from the maintenance court that the test results and Dr York's emails could be admitted in terms of section 22 of the CPEA or section 12 of the Maintenance Act, and conclude that insofar as it admitted them on that basis that amounted to a misdirection on its part. It follows that in our view it was not open for the maintenance court to weigh the first and second reports as it sought to do in the passage from its judgment cited above. [73]      We do however consider that the maintenance court was permitted to note that, on the face of it, the results produced by the three tests was generally consistent, in the sense that where the same loci were tested, the outcomes were almost invariably the same across all three tests. [74]      We also consider that the Court was entitled to note that MDS, the firm that carried out the second and third tests, was SANAS accredited, and that the firm that carried out the first test, UNISTEL, indicated that correlation between all nine loci tested would provide substantial certainty (" groot sekerheid '') of paternity. [75]      Furthermore, we consider that the maintenance court could review the SANAS guidelines (also included with the appellant's heads) to ascertain that SANAS required testing to be done to certain standards, that it required the probability of paternity to be greater than 99.8% before a report could be issued that the alleged father was not excluded as being the biological father, and that paternity should be excluded on a mismatch of two or more loci . [76]      Finally, we consider that the Court was entitled to place some weight on the fact that the two of the three tests that indicated a probability of paternity indicated a high probability percentage, and that no expert evidence was led - documentary or otherwise - to challenge that calculation, even on a purely statistical basis (i.e.: on the assumption that the testing was otherwise accurate). [77]      We consider that the combined effect of those facts entitled the Court to find, prima facie , that the testing it had ordered indicated that there was a material degree of genetic commonality between the appellant and Z[...]. The evidence of the parties [78]      In this case the Court did not only have the results of the paternity tests and Dr York's email before it. It also had the evidence of the appellant and the respondent. [79]      This cumulative effect of the evidence appears to have been largely overlooked in the debates that took place in the maintenance court. For instance, the appellant placed some store on the fact that under all of the tests the two- loci mismatch threshold of the SANAS guidelines was exceeded. However, and like the expert evidence of Dr York, the court was not obliged to be led by that standard when considering the question it was required to investigate: The court was seeking to establish paternity on the probabilities, which is not necessarily the threshold contemplated by the SANAS guidelines. [80]      There was no evidence to suggest that the SANAS guidelines produce a result on the probabilities. On the contrary, those guidelines suggest that a much higher threshold is required before paternity will be confirmed. Furthermore, it is plain that the SANAS guidelines work on the basis that the only information considered in the determination of paternity are the samples received from the relevant mother, child and potential father. The court has additional information, in the form of the testimony it receives. Indeed, DNA testing is not obligatory in paternity disputes and section 36 of the Children's Act, 38 of 2005 , creates a statutory presumption of paternity in certain circumstances. [81]      As indicated above, the appellant has raised a multitude of challenges to the findings the maintenance court made on the facts of the matter. [82]      In our view, there is a substantial degree of overlap in some of the criticisms. We also consider that some of them are unhelpful because they do not really have a bearing on the ultimate issue in the case. [83]      At the outset, and being a case about paternity, a central enquiry is about whether, on the probabilities, the appellant and the respondent had sexual intercourse at around the time Z[...] was conceived. There was no dispute that Z[...] was conceived and that the respondent is his mother. While some form of insemination can't automatically be ruled out, the starting point is that she had sexual intercourse with someone at the time of conception. The question is whether, on the probabilities, that person was the appellant. [84]      The decision in Mayer v Williams 1981 (3) SA 348 (AD) is a reminder that special caution must be applied when evaluating the evidence in cases of this sort. That however does not mean that inconsistencies in the respondent's version means that her version should be rejected or that her entire account is a fabrication. [85]      The respondent testified that that Z[...] was born on 23 May 2001 and that she was pregnant for 42 weeks at the time he was born. That evidence, which was not seriously disputed, puts the date of conception around early August 2000. [86]      The respondent said that she met the appellant in 1999 at a nightclub called Planet Bar, and that they commenced a sexual relationship some time after the appellant opened a sports bar called " Old Trafford ". The respondent referred to her and the appellant being " involved'' , which she confirmed was a reference to a sexual relationship. We understand the following extract from her evidence to be that they would have sexual intercourse at an upstairs section at the Old Trafford sports bar: " COURT : Okay, go ahead. We are still interested in you explaining your involvement with the meneer, how did that take place. MS W[...]: Ja. So basically after closing time we would be at the place. He had an upstairs, there were steps going up. So there was like a matrass thing there. So,ja, and do not know if he asked his sister if I could stay there. I still do not know. I am assuming it was him who spoke to her, because like I said we did not - we did not have a friendship or anything. But then he also helped me with a bed. I do not know if he gave me the TV then. But then I was staying up with her... [indistinct]." [87]      The respondent testified that she broke the relationship off when she discovered that the appellant was engaged to marry someone else. She said that after living with the appellant's sister for a while she moved to a place called Glenhaven, and that it was there that Z[...] was conceived on an occasion when she and the appellant had sexual intercourse there. [88]      The respondent said that she initially didn't realise that she was pregnant. She had been using birth control on the occasions she had been intimate with the appellant, but on the occasion they had intercourse in Glenhaven she was on a course of antibiotics, which she understood had rendered her contraception ineffective. [89]      The respondent also testified that she heard nothing from the appellant until about February 2001, when she claimed to have been between six and seven months pregnant (the respondent's evidence regarding her contact with the appellant between Z[...] being conceived and February 2001 was unclear and inconsistent). Assuming a conception date of early August 2000, the respondent would have been six months pregnant early in February 2001 and seven months pregnant early in March. The respondent said that they met at Glenhaven and had intercourse again. [90]      The above summary largely emerges from the following extract from the transcript of the respondent's evidence in chief: "MS W[...]: His [the appellant's] sister met her previous husband. He had passed on. So she obviously moved in with him eventually. He used to come visit there, Hepurn. But then she decided to move and obviously I had to get another place. COURT : Okay. So how long did you stay with his sister? MS W[...]: Only a few months probably. Less than a year. Definitely less than a year. COURT : And then where did you move to? MS W[...]: From where - oh, let me see. Did I go from there to Glenhaven? COURT : Okay. Go ahead. MS W[...]: Yes. From there I went to Glenhaven. I was working at Parow Library at the time. E[...] [the appellant] came to visit me there. I cannot remember how he knew I was there, but I still had his bed. I think I had his TV. I was on antibiotics. So Z[...] was conceived while I was on antibiotics.  And after I broke it off -  I am taking responsibility. I am not blaming, please. I am not blaming. So that was the time. So we had sexual intercourse and Z[...]... [intervenes] COURT : In Glenhaven? MS W[...]: In Glenhaven. That I believe is where Zekr [sic] was conceived. I was always on - what is that- I am almost said Tramadol. There is - what do you call this birth control pills? But ja, which I could not understand. Then I found out that the antibiotics cancels it ja. From there I moved. , I think seven months he disappeared. E[...] disappeared. I called - I do not know if I called his sister or I still had his number, but just to tell him that I was pregnant ja. COURT : When did you tell him you were pregnant? Were you pregnant or was the baby born already? MS W[...]: No, I was pregnant. I told him that I was pregnant. But after I told him I was pregnant I hardly saw him. But not that he came there quite often, but he disappeared until I saw him when he [sic] was seven months. I was seven months, in February. I know it was February that he came to Glenhaven again. COURT : Were you in February seven months pregnant? MS W[...]: Yes, somewhere along the line six, seven. I cannot remember. COURT · Six to seven months. MS W[...]: But I know I saw him the last time in February. COURT : You saw Mr P[...] in February last? MS W[...]: I saw him in February 2001. That I know for a fact. Do not ask me how, but I know that, February. Then ... [intervenes] COURT : Was it also in Glenhaven? MS W[...]: Also in Glenhaven. COURT : What was the encounter about? MS W[...]: The encounter was just, I am thinking he here to support. You know just being there. But we had sexual intercourse. I think it was just a sexual relationship. I just got carried away possibly. COURT : Okay. But now when you said you saw Mr P[...] February 2001 last. Now obviously I have to ask was the child born already? MS W[...]: No. COURT: No. Just give me a second. And what happened on that day? MS W[...]: Not really much, because he was always tensed and stressed. I know like even in the past I used to always massage him. So there was not much talk about the baby and stuff like that I can recall. But I just assumed he would always be around. Whether I saw him every now and then, I just did not expect him to disappear. COURT: And then did you have sexual intercourse there also? MS W[...]: Yes, Your Worship. He was driving an Audi that time, a white Audi, Ja. COURT : So if you can - if you can time your relationship with Mr P[...], you said it end in February 2001 and it started? MS W[...] : 1999 with the flirting and then eventually - if he can say when he opened Old Trafford then I would know ...[intervenes] COURT: And when did the sexual relation start? MS W[...]: At Old Trafford when he opened that place. COURT : During that whole period? MS W[...]: From the time he was there. I do not know for how long Old Trafford was open as well. It was not for long. COURT : But now if somebody should ask you and maybe this is an unfair question, I do not know ...[intervenes] MS W[...]: It is fine. COURT: You will know. If somebody should ask you how many times you had sexual intercourse with Mr P[...] would you be able to say? MS W[...]: I do not think so. COURT : And the reason why you would not be able to say is because? MS W[...]: I did not count. COUR T: No, no, I know you did not count. But ...[intervenes] MS W[...]: But ja. No, I do not mind the question. COURT : Okay. MS W[...]: But I mean, going back I cannot think how many times of course not. COURT : Would you say it is a lot or a little? MS W[...]: It is not a little I would say. It is not little. [91]      We must say that, at least from the transcript of the proceedings, the respondent presented as a relatively poor witness. Her evidence was often unclear and inconsistent, especially when it came to the timeline of events. That is no doubt in part because she was testifying to events that occurred more than 20 years earlier. It should be noted that Z[...] is apparently now a self-supporting adult, and the proceedings in 2016 were instituted at his instance, so the respondent says, in order to get some clarity as to the identity of his father. While the case has been brought in the maintenance court, it is for all practical purposes nothing more than an enquiry into paternity. [92]      An example of an inconsistency in the respondent's evidence that the appellant has focussed on is where Z[...] was conceived. He complains that the respondent was ambivalent as to whether that occurred in Glenhaven or at the Old Trafford sports bar. That emerged from the following exchange of evidence when the respondent was being cross-examined by the appellant, shortly after it had been put to her (and she had not disputed) that she had started frequenting the Old Trafford sports bar between the end of July and the end of August 1999: MR P[...]: Okay, Your Worship, I just want to then say that your answer when exactly-when exactly did you fall pregnant? MS W[...]: When exactly? Are you asking me that now? MR P[...]: They say a woman always knows. MS W[...]: I am telling you when you came to - sorry, I must speak to you? COURT: Yes, speak to the Court. MS W[...]: No, when he came to me in Glenhaven that is time I fell pregnant. COURT : And you can ...[intervenes] MS W[...]: Because I did not have anybody else, so. Then I was on Triphasil and antibiotics cancelled that. MR P[...]: Your Worship, I am talking about the timeline Your Worship. MS W[...]: But it is - really I do not know which month, which day. I cannot remember. COURT: We will just quickly look back. MS W[...]: Unless it was, but I do not know. COURT : You said you saw Mr P[...] in February 2001. At the time you could have been six to seven months pregnant. MS W[...]: Yes, Your Worship. COURT : Now why can you not work it out? MS W[...]: Oh, must I work it out. COURT : You have to work it out ja. That is what Mr P[...] wants you to do. MS W[...]: Oh. COURT: This is now, remember you are looking at the timeline. Right. So you said seven months. He disappeared for seven months. Right? MS W[...]: No, I did not ...[intervenes] COURT: I told him I - then you told him I was pregnant. February you said it was six to seven months pregnant. MS W[...]: When I saw him ja. COURT : Ja, so in February you were already six to seven months pregnant. So I mean do a calculation if you can. Work that seven months from February, because that is the timeline you are giving yourself now in terms of your testimony. MS W[...]: Oh, so if I am - no, I do not know if it was conceived there or at Old Trafford. I do not know. But like I said it is 25 years ago. You must forgive me. But I am not here to lie. COURT: You said your child was born on the 23 rd of May 2001. MS W[...]: Yes, he was overdue. It was nearly 42 weeks. COURT : 42 weeks. MS W[...]: He was overdue. COURT: It is normally 40 weeks. MS W[...]: Your Worship, I think Mr P[...] said I have frequented the place as from July, August if you go back. So he might have been consu - what I am saying. I am sorry. He might have been conceived there at Old Trafford. I do not know, you know because, but ja. I just know I told him and I am sure I cannot even think if I told him at Glenhave or wherever. But I possibly saw him twice at Glenhaven. Once to tell him and the next time, and I think I got him - I got hold of his sister to get hold of him. I am speaking under correction. Forgive me. Then he came. After that I only saw him again in February before Z[...] was born, so ja. So you right if I frequented the place from July, August, because we started having sex from not long after I got there ... COURT : So I am just going to quickly go back to what the meneer 's question was. So meneer said you came there from the 5th of - you came there from the end of August 1999. MS W[...]: You can exactly go back he did first say July, August. And how he knows that, I am grateful, because he did mention before saying August he said July, August and he was right. [93]      As we read this evidence, the respondent accepted that if she was seven months pregnant in February 2001 and she was frequenting the Old Trafford sports bar in July and August 1999, it is possible that Z[...] was conceived there. That was manifestly a concession brought about by a calculation error on the respondent's part: If Z[...] was conceived in August 1999 he would have been born in about May 2000, not May 2001 (as he was). [94]      That evidence is thus not, in our view, particularly problematic to the respondent's case. That she could not recall the precise chronology of events is unsurprising. Her willingness to concede facts on the premise that she had the timeline wrong is in fact to her credit. And ultimately the question of whether Z[...] was conceived at Old Trafford sports bar or at Glenhaven is neither here nor there. The ultimate question was whether the appellant is Z[...]'s father. The respondent testified that she did not have sexual relations with anyone but the appellant at all material times. She specifically stated that she did not have such relations with any of the appellant's family members. The respondent was (unsurprisingly) unable to dispute those allegations when he gave evidence. However, he made no challenge to that proposition when cross-examining the respondent. [95]      The appellant's version was of considerable assistance in establishing a chronology from which the versions of the parties could be considered. [96]      The appellant said that he opened the Old Trafford sports bar on 6 March 1999, and that before that and at that time he had been a karaoke host at various sports bars. He said that the respondent and a friend of hers had started frequenting the Old Trafford sports bar around the end of July/August 1999, apparently pursuant to being invited to do so by one " Danny ", one of the appellant's staff. The appellant believed that Danny had met the respondent and her friend at Planet Bar. The respondent mentioned that she had danced with Danny at Planet Bar, and the versions accord from that perspective. [97]      The appellant testified that the respondent befriended a lot of people at the Old Trafford sports bar and " ... became like almost a part of the household furniture there, to put it that way ". He also said that the respondent came to the bar alone and would sit, staring at him " ... with dead still eyes ": "She was looking at me at the time and I confronted her one day and I asked her, "Is there something wrong" and she said to me, "No. " Long after that my barman at the time, my late friend, came to me and he said to me "Did you see how S[...] can sit there and just look at you?" So I said, "Man, I saw, so I do not know if there is something wrong," but nevertheless it stayed there. We just left it there because there was other important things, Your Worship." [98]      The appellant also explained that the respondent had met his then fiance, who was between six and a half to seven months pregnant at the time. The appellant said that his child was born in December 1999, which would suggest that the meeting was relatively soon after the respondent started frequenting the Old Trafford sports bar.  The appellant said that in about December 1999 the respondent had given his fiance a book about pregnancy or baby names, and had also asked the appellant to do a function at the Delft library where she worked at the time: "And she brought my fiancée a book about pregnancies uhm, and I am not sure if there was also a book with names but nevertheless it was books and the was one concern that my fiancée had. She said, "Listen, you have got to take this book back because it is a library book and I did not, you know, sign it out," type of thing. I eventually gave the book back after a week or so and that was closer to early December is when Ms W[...] asked me to do the function at the Delft Library." [99]      The appellant also testified about an incident he claimed occurred in early January 2000, a few weeks after his child was born. He said he and his fiancé took their baby to the Old Trafford sports bar for the staff to see, that the respondent was present on that day, and that she said to him " Oh, you must give me a Purity jar with some sperm in. I think the baby is just so cute ". He also said that in about March 2000 the appellant stole a photograph of his child that he kept behind the bar, and that in about May 2000 she was banned from the Old Trafford sports bar: MR P[...]: We did the function in '99 and then time just went by and it was close to March the following year. I had a photo of my fiancée and I had a photo of my child at the time behind the bar, my son, and there was one Thursday and Friday that I was not well and I did not go to the institution. Me and my fiancée got there on Saturday morning - a Saturday morning. I was not actually on my way to the place. We had another appointment and she then noticed that the photo of our son was no longer behind the bar. [indistinct] the barman, Clinton, he said the only person that could have took that was the applicant because she was here. I was not personally there, Your Worship, so that is why I had to ask him about the incident. COURT : And this was behind the bar? MR P[...]: Behind the bar. Next to the till behind the bar there was a mirror. It was against the mirror. COURT : Go ahead. MR P[...]: After investigating and asking questions she first denied that she took the photo. COURT : When did this discussion take place with the applicant? MR P[...]: That was - that was probably within the following week, Your Worship. COURT : In the same week? MR P[...]: In that same week. COURT : So you confronted her? MR P[...]: I did, Your Worship. COURT - Go ahead, meneer. MR P[...]: And at first she denied that she took the photo and a few days after that she - because we were very worried and I was furious at the time because with our discussions prior to - prior to this incident and Mr W[...] telling us her life stories and so on, there was this thing about sangomas coming out and how she could not stand certain things and what she went through with her ex-husband etcetera, and that-I did not say anything at the time, Your Worship, but that was - it was a pinnacle point because it was a worrying factor for me later that week she just brought the picture back. She slipped it so out of her small bag, put it on the counter and pushed it towards me, so I said to her, "Now, why did you deny taking the picture?" and her words to me was, "Oh, I saw the baby was so cute, " and I just want to go back to the very - if I can Your Worship, just prior to with the same words that she gave prior to that. In December when my son was born we took the baby - he was a couple of weeks old - we took him to the sports bar during the day on a Saturday to show the staff because everybody wanted to see the baby and we had female securities and everybody there as well, and everybody was on the corner of the bar. There was a freezer there as well and my wife was standing there with the baby and as I came out - whether I went to the kitchen or did something, I do not know - I came out behind the bar, she said to me, "Oh, you must give me a Purity jar with some sperm in. I think the baby is just so cute. " So those two words reminisced with me at the time she told me she took the picture because the baby was just so cute. Anyway, the incident did not go off well and not long after that, Your Worship - that must have been mid-May, beginning May when I discussed this issue with my fiancée at the time and we decided ... [intervenes] COURT : Is this now May 2020 [sic} MR P[...]: Everything happened in 1999, Your Worship. COURT : Okay ...[intervenes] MR P[...]: Sorry, Your Worship, that was May 2020 [sic]. COURT : This is mos now after your baby with your wife was born? MR P[...]: Yes, after my son was born, 2020 [sic]. COURT : Right. Go ahead. MR P[...]: And then she was banned, Your Worship. Towards the end of May ...[intervenes] COURT : Just explain that, meneeer. What did you say? She was banned? MR P[...]: She was banned from the premises, not to come there due to that incident of the ... [intervenes} COURT · And who banned her? MR P[...]: I did, Your Worship." [100]   The appellant went on to explain that he closed the Old Trafford sports bar on 11 July 2000, a few months after the respondent was banned from going there. The appellant said that he had given his bartender, Clinton, an opportunity to try and run the enterprise for about a month, but by about the end of June Clinton had said he was no longer interested in doing so. The appellant said that he then closed the business on 11 July, after returning from a trip to Namibia: "MR P[...]: We had other competitors but besides that we had other issues with elements around us looking for protection money and I ventured into a possibility of a courier business which I tested out throughout May and June. Now, every year June I would go to Namibia - annual. That was out annual trip to Namibia and we prepared that time going to Namibia to show my wife's granny, grandparents the baby and I said to my friend, Clinton, I said to him, "Clinton, you know this business. I do not think I am going to carry on any longer. COURT : And you are talking now about the sports bar? MR P[...]: I am talking about the business, the sports bar, Your Worship. His words to me was, "Listen, give me a chance," because he was also going to be without an income. He said to me, "Give me a chance and see if I cannot maintain the place or build the place or do something better. " COURT : And what was his function at the bar? MR P[...]: He was the barman but also the general manager. He would take over - if I am not there he makes the decisions, he would do the cash, he would do... [intervenes] COURT : But he was not a co-owner or anything like that? MR P[...]: He was not a co-owner. COURT: Okay, and then after that? MR P[...]: Okay, for that entire month which I believed he ran the place - I went to Namibia at the end of June and I specifically remember phoning him from Namibia because the rent was due and I was still liable for the rent and I did not know what was happening there at the time and he said to me, "Look, it has been a few days that we were not operating. I do not think I am going to keep the place. " I came back on - and the reason I know the dates, Your Worship, I have got my passport to show it. I came back on the 10 th . I crossed the border on 10 July which was a Monday, on a day we were closed. I then went and I got the keys from Clinton ... [the appellant then goes on the explain how we went about closing up the Old Trafford sports bar]. COURT: Okay, so from what you are saying then, from 10 July 2020 [sic] the place is closed? MR P[...]: 11 July. COURT : You said ...[intervenes] MR P[...]: Yes, the 10 th it was closed as a normal closing day but the 11 th I closed the place." [101]   The appellant said that he did not see the respondent again, and had in fact not seen her since she had been banned towards the end of May 2000. This is of course where the versions conflict: Construed in the context of the evidence as a whole, the respondent's version was that she and the appellant were intimate in Glenhaven in early August 2000, which is when she considers Z[...] was conceived. The appellant averred that he first heard of the respondent's claim that he was Z[...]'s father in about September 2001, after the respondent contacted his wife and told her that Z[...] (then about four months old) was the appellant's child. [102]   We consider that the analysis above reveals that despite the apparently poor quality of the respondent's evidence, once adjusted to take account of errors in chronology much of her testimony fits with the appellant's version. The respondent's version was that the appellant and the respondent knew each other by about September 2009 and that the respondent spent a lot of time at the Old Trafford sports bar. He says the respondent got to know his fiancé and that he attended a function with her with the hope of securing a business opportunity. He says she used to stare at him, made an inappropriate comment about him giving her some sperm because he had a cute baby, and stealing a picture of his child. His evidence also gives some credence to the respondent's version that she was living in Glenhaven in about August 2000, the time she approximates Z[...] was conceived. [103]   The key difference between the versions is that the appellant disputes that he and the respondent had a romantic relationship. In particular, the appellant disputes that on at least several occasions during a period towards the end of 1999 he and the respondent had sexual intercourse on a mezzanine floor at the Old Trafford sport bar after closing time, or that they did so at the respondent's home in Glenhaven in about August 2000 and February 2001. Conclusions [104]   Without more, and bearing in mind the onus and the cautious approach mandated in Mayer ( supra ), we consider that the respondent's evidence alone did not establish the appellant's paternity of Z[...] on a balance of probabilities. [105]   Similarly, and without any evidence supporting them, the mere admission of the paternity tests and Dr York's email of February 2018 did not establish the appellant's paternity on a balance of probabilities. [106]   However, we consider that the probabilities shift in the respondent's favour once those two sources of evidence are considered as a composite whole.  At the risk of repetition, we consider that the respondent's version becomes the dominant one on the probabilities when it is considered with the following: [107]   On the face of it, the court-ordained paternity tests all indicate a material level of genetic similarity between the appellant and the respondent. That fact lends credibility to the respondent's version that Z[...] was conceived pursuant to a sexual encounter between the appellant and the respondent at her home in Glenhaven in about August 2000. [108]   The first test excluded paternity because there were two or more loci that did not match. While that is in line with the SANAS guideline, that guideline also makes it clear that it requires a very high degree of certainty before confirming paternity. The court is concerned with proof on a balance of probabilities, not scientific proof. The conclusion in the first test thus does not serve to exclude a finding of paternity on the probabilities. [109]   All three tests have substantially the same results for the testing of the loci common to all of them. That suggests reliability of the application of the three tests. [110]   The second and third tests indicate a high probability that the appellant is Z[...]'s father. Although the relevant calculation has not been explained in evidence, DNA tests are relatively well-known scientific tools and have some prima facie value. The only material evidence the appellant put up to discredit that prima facie evidence is the SANAS guidelines and an email from Dr York (which he now says the Court ought to have disregarded). We consider that if regard is had to Dr York's email, it only serve to reinforce the conclusion that, on the probabilities, the appellant is Z[...]'s biological father. [111]   We accordingly find that even if the maintenance court erred in assessing the basis on which the paternity tests were admissible and the weight to be attributed to them, it nevertheless arrived at the correct finding, namely, that the appellant's paternity of Z[...] was established on a balance of probabilities. [112]   In coming to this conclusion we have considered all the grounds of appeal raised by the appellant. We do not consider that any of them serve to undermine the analysis above. Insofar as the appellant has criticised the maintenance court for not safeguarding his interests as an unrepresented litigant, if he wished to raise those criticisms he ought to have done so by way of review proceedings. We hasten to add that our consideration of the record suggests that the proceedings were properly conducted by the maintenance court, which remained focused on seeking to inquire into the core issues it was seized with. [113]   There should be no order as to costs in respect of the appeal as the respondent was represented pro bono up until the notice to abide, and did not participate in the proceedings thereafter. [114]   In the circumstances we make the following order: 1.         The appellant's late filing of his notice of appeal is condoned. 2.         The appeal is dismissed. 3.         There is no order as to costs. MORRISSEY AJ Acting Judge of the High Court [115]   I concur. LE GRANGE J Judge of the High Court Appearances: Appellant appeared in person. No appearance for respondent. sino noindex make_database footer start