n Stellenbosch Law Review = Stellenbosch Regstydskrif - Misattributed paternity : should there be a right to reimbursement of maintenance erroneously paid?
[Discussion of (A653/2009) 2011 ZAWCHC 5 (17 February 2011)]

Volume 23, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



A man who paid maintenance because of a false belief that he was a child's biological father may wish to reclaim the amounts paid once he discovers the truth. In the current South African legislation there is no guidance on whether such claims are actionable. Prior to (A653/2009) 2011 ZAWCHC 5 (17 February 2011) there was also no reported case authority. In this matter Gamble J held that maintenance reimbursement claims are valid where the requirements of the can be met. In this article we provide an evaluation of his judgment. We show that the application of the as required in makes it very difficult for misattributed fathers to succeed. This difficulty is compounded by a position taken in several South African cases that it is better not to jeopardise existing father-child relationships by ordering paternity testing. Drawing on developments elsewhere, we contend that in many instances the risk of harming such relationships is in fact lessened where courts facilitate discovery of the truth and then order maintenance repayments. We suggest that the position established in is inappropriate because it renders it almost impossible for misattributed fathers to succeed with maintenance reimbursement claims. With do-it-yourself paternity test kits becoming less expensive and less intrusive, misattributed paternity disputes will become increasingly more frequent. We therefore propose that in the interests of both misattributed fathers and children the legislature should intervene. It should do so by allowing expressly for reclamation of maintenance erroneously paid, and by setting requirements which are practicable. We suggest some guidelines for such legislation, and also discuss what factors should be considered by courts when disestablished fathers seek reimbursement.

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