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Nkuebe v Minister of Local Government and Others (C of A (CIV) N0.41/2009 )
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) N0.41/2009
In the matter between:
‘NEKO TŠEPO QEFATE NKUEBE APPELLANT
MINISTER OF LOCAL GOVERNMENT 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
‘MALESANG SENTLE MOJELA 3RD RESPONDENT
HLABATHE NKUEBE 4TH RESPONDENT
CORAM: SMALBERGER, JA
HEARD: 15 APRIL 2010
DELIVERED: 23 APRIL 2010
Appeal against dismissal of application to compel third and fourth respondents to undergo DNA testing in order to determine fourth respondent’s legitimacy – relevant facts evaluated – approach to be followed – considerations governing – appeal dismissed – costs.
 This judgment will hopefully bring to an end much litigation and uncertainty concerning the successor in title to the office of the Principal Chief for Quthing and Chief of Sebapala (“the office of the Chief”). The late Chief Tšepo Qefate Sempe Nkuebe (“the deceased”) occupied the office of the Chief until his death on 5 May 2009. The deceased had been married to the late Chieftainess ‘Mahlabathe Nkuebe. The appellant (applicant in the court a quo) is the third son born during the subsistence of their marriage. Their second son has passed away. The fourth respondent is the first male child born during the marriage. As will appear more fully below, the deceased in later years denied he was the father of the fourth respondent. The third respondent is the sister of the deceased. It is common cause that the family has nominated the fourth respondent to succeed to the office of the Chief. The appellant disputes his right to succeed.
 On 26 June 2009 the appellant brought an application in the High Court in which he sought the grant of rule nisi in the following terms:
“2 (a) That the 1st respondent shall not be directed to stay the processes leading to the final succession to the Principal Chieftainship of Quthing and Sebapala pending finalisation hereof.
(b) That the purported letter made by the family and nominating the 4th respondent as the successor in title to the above mentioned offices be released to the applicant.
(3) That the 3rd and 4th respondents together with the applicant be directed to submit for a DNA test so as to determine whether applicant and 4th respondent are biological sons of the late Chief Tšepo Qefate Sempe Nkuebe at Bloemfontein Medi-Clinic within one week of the granting of this order.
(4) Costs of suit.
(5) Further and/or alternative relief.
(6) That prayers 1 and 2 (a) operate with immediate effect as interim relief.”
 Answering and replying affidavits were duly filed by the parties interested in the application. In due course the matter came before Monapathi J. On 16 December 2009 the learned judge dismissed the application and ordered the appellant to pay half of the fourth respondent’s costs. The present appeal lies against his dismissal of the application.
 The appellant elected to proceed by way of notice of motion. In the circumstances, where disputes of fact have arisen on the affidavits, regard must be had to the facts averred by the appellant which have been admitted by the respondents, together with the facts alleged by the respondents. This is in keeping with the so-called rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C, which has consistently been followed in this Court. (See e.g. MNM Construction Co. (Pty) Ltd v Southern Lesotho Construction Co. (Pty) Ltd and Others LAC (2005-2006) 112 at 116E-G; Tšehlana v National Executive Committee of the LCD and Another LAC (2005-2006) 267 at 278F).
 The true issue underlying the appellant’s application concerns who is entitled to succeed to the office of the Chief. The position is governed by section 10 of the Chieftainship Act 22 of 1968. The relevant provisions provide:-
“10. (1) In this section a reference to a son of a person is a
reference to a legitimate son of that person.
(2) When an office of Chief becomes vacant, the first-born or
only son of the first or only marriage of the Chief succeeds
to that office, and so, in descending order, that person
succeeds to the office, who is the first-born or only son of the first or only marriage of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection.”
 It is common cause that the fourth respondent was the first male to be born during the subsistence of the marriage between the deceased and his late wife. The record does not reflect his precise date of birth but he is approximately 58 years of age. According to the third respondent the deceased “accepted him as the eldest son which is why he clothed him and bought him necessities. Hlabathe was born at his home (paternal) and he underwent all the customary rituals befitting of the eldest legitimate child.” The fourth respondent has at times acted as the Chief, and is regarded by the family generally, and it would seem by the relevant authorities, as the logical and legal successor to the office of the Chief.
 It is further common cause that under Sesotho customary law the fourth respondent would be regarded as the deceased’s legitimate son. The appellant contends, however, that the test for legitimacy in terms of Section 10 (1) of the Chieftainship Act is not that under customary law, but under common law. To be the deceased’s legitimate son for the purposes of that section the fourth respondent would have to be the deceased’s biological son. The appellant disputes that he is. Hence the application brought by the appellant in an attempt to establish that the fourth respondent is not the deceased’s biological son. It is common cause that were the fourth respondent to be disqualified from succeeding to the office of the Chief, the appellant would be entitled to be appointed thereto. There is accordingly much at stake. The appellant claims that appropriate DNA testing will establish conclusively whether or not the fourth respondent is the deceased’s biological son. This is what gave rise to prayer 3 of the application.
 For the purpose of the present appeal it will be accepted, without deciding the matter, that to qualify as “a legitimate son” in terms of Section 10 (1) of the Chieftainship Act, the fourth respondent would have to be the biological son of the deceased. The fact that the fourth respondent was born during the subsistence of the marriage between the deceased and his late wife, the fourth respondent’s mother, gives rise to a rebuttable presumption of legitimacy in that sense (SURMON v SURMON 1926 AD 47 at 51). As the appellant is challenging the fourth respondent’s legitimacy, the onus of rebutting such presumption rests upon him.
 In paragraph 5.1 of his founding affidavit the appellant purports to attach a “collection of cases where my later father deposed to affidavits under oath that the 4th respondent is not his son, they are marked Annexure ‘NEK 1’ collectively.” In fact “NEK 1” consists only of a single affidavit dated 10 March 2006 in which the deceased denied paternity of the fourth respondent. The appellant also alleged that the deceased “wrote numerous letters to this effect” which were annexed as “NEK 2” with translations as “NEK 3”. These are letters which were written in 2002 and 2008. The appellant further alleged (in paragraph 6.1) that “prior to my father’s death, he instituted numerous cases [in] which he also deposed that 4th respondent is not his son. Find attached the said affidavits marked Annexure ‘NEK 4’.” However, there is no “Annexure NEK 4” to the founding affidavit.
 To these allegations the fourth respondent replied as follows:
“It is true that my father used to say that I am illegitimate to some
people and the deponent. He did not end there. He even instituted
cases to challenge my legitimacy in the courts of law. He either lost or would just abandon such challenges before they were brought to finality. Truly speaking I cannot be in a position to say who my biological father is and who is not. But I say that I have always known the deceased to be my father, and I was brought up till adulthood by the deceased. He arranged for my marriage as his son.”
He went on to say:
“I agree that my father used to say that I am not his legitimate son. Whether he was convinced about that only he knew. It is however significant that in another case in 2001 my father has raised this issue, and had in fact prayed that I and him be subjected to the D.N.A. test, but he quickly abandoned that prayer before this Honourable Court’s decision.”
And he continued:
“During July 2000 when my father sought an order that he and I be subjected to the D.N.A. test I had expressed my willingness to do so if so ordered. However my father abandoned this prayer as already mentioned. I am surprised that the applicant now prays for the same thing again. This is another abuse of this Honourable Court’s process because this matter has been finalised and concluded by this Honourable Court.”
 There is no objective evidence to support the denial by the deceased in his affidavit that he was the father of the fourth respondent. Significant too is the fact that the appellant’s supporting annexures (to the extent that they exist) only relate to the period post 2000. There is no evidence of earlier assertions by the deceased that the fourth respondent was not his son apart from the bald, non-specific and unsupported assertion by the appellant that “during the lifetime of my father and since I can remember my father has always been saying that the 4th respondent is not his son.” One would have expected some substantiation of this. Be that as it may, there is no suggestion on record of any legal proceedings challenging the fourth respondent’s legitimacy prior to 2000, by which time the fourth respondent was nearly 50 years old and the deceased’s logical successor to the office of the Chief.
 The reason why the fourth respondent’s legitimacy appears suddenly to have become an issue is probably to be found in paragraph 5 of the third respondent’s answering affidavit where she said the following:
“5.1. It is conceded that my biological brother, Tšepo, instituted cases where he deposed that 4th respondent is not his son. However, it is my humble submission that the relationship between Hlabathe and my brother (his father) materialised when his father was dethroned and Hlabathe ascended to power, which he was not desirous of accepting but had to accept because he was told that the chieftaincy would go to some other member called Hareeng Tšepo Nkuebe of Seforong.”
5.2. This was a request of the family. This situation did not augur well with the father. That was when he started disputing his legitimacy. The conviction on the part of my brother that Hlabathe is not his son was sparked by his personal disagreements with him. The conviction has no basis whatsoever and cannot be used as a conclusive criterion of Hlabathe’s legitimacy because he has always been treated rightfully as the legitimate successor by the families of Mojela and Nkuebe.”
In support of what was stated by the third respondent see Nkuebe v Attorney-General and Others LAC (2000-2004) 295 at 297 F-G.
 Lastly in this regard, the deceased’s ambivalent attitude towards the question of whether the fourth respondent was his legitimate son also appears from the judgment of this Court in Principal Secretary for the Ministry of Local Government and Another v Nkuebe and Others LAC (2005-2006) 392, in which the deceased was the first respondent. At page 398I of the judgment [para 17] it is stated:
“It is not in dispute for that matter that the first respondent’s son, Hlabathe, has the first right to succeed to the office of the Principal Chief of Quthing as well as the office of the Chief of Sebapala.”
While it is true that the fourth respondent’s legitimacy as such was not an issue in that matter, there is reference in the judgment to the deceased having been warned to refrain from overlooking the fourth respondent, and in that context the passage quoted above is significant. One would at least have expected a denial or some reservation from the deceased concerning the fourth respondent’s legitimacy if the deceased felt so strongly about not being his father, as is now suggested.
 Faced with what prima facie appears to be a weak challenge to the fourth respondent’s legitimacy, the appellant’s prayer that the third and fourth respondents should be ordered to submit to DNA testing looks very much like a last gasp attempt on the appellant’s part to prevent the fourth respondent from succeeding to the office of the Chief. In this respect the appellant said the following in his founding affidavit:
“In order to determine whether the 4th respondent was the son of my late father, I am asking for this prayer in order to finally and conclusively determine the issue of legitimacy of the 4th respondent. I have consulted numerous doctors on the advice of my present legal representative on the issue of DNA test which I have been advised is genetic profiling or genetic finger printing whereat the sample of blood of a person’s body fluid or body tissue is analysed for purposes of identification. I have also been advised after consultation with numerous doctors amongst others Dr Kolobe and verily believe same that ‘Malesang Sentle Mojela (nee ‘Mabatho Sempe Nkuebe) being the younger biological sister of my father is the perfect and/or right person who can be used or be helpful in determining whether the 4th respondent is the son of my father in as much as she is the biological sister of my father.”
Dr Kolobe’s only contribution in his supporting affidavit was to confirm the contents of the appellant’s affidavit.
 On the papers before us we know nothing about Dr Kolobe’s qualifications and what entitles him to express an expert opinion on DNA testing. Nor does he explain why from a medical/scientific point of view the third respondent would be “the perfect and/or right person who can be used or be helpful” in determining whether the fourth respondent is the deceased’s son. Nowhere is it said that DNA testing of the appellant and the third and fourth respondents would be conclusive in determining that.
 The parties agreed that in an appropriate case the High Court would have the inherent power to make the order sought in prayer 3 – see SEETAL v PRAVITHA and Another NO. 1983 (3) SA 827 (D & CLD) at 831 – 832G. For the purposes of the present appeal we will accept that to be correct. In Seetal’s case Didcott J went on to say (at 832G-833D):
“This is not to say, however, that an order providing for evidence to be investigated and gathered is obtainable here whenever the evidence is or may well be material to the case of the party who asks for the order and he has no other means of assembling the information. The Court will come to his assistance in that situation, one may safely assume, once it has nothing else that matters to take into account, once it has no real reason to withhold help. It will no doubt feel satisfied then, to quote Botha J, that: ‘…justice cannot properly be done unless relief is granted to the applicant.’ Cases are conceivable, on the other hand, in which the justice of that course speaks less for itself. The measures in question may have consequences or implications which put a different complexion on things. These may be harassing or distressing to the person who would have to comply with the order. They may intrude upon his privacy or invade his rights. They may make demands on him that are oppressive or excessive. There may be other objections to or difficulties with them. Instances are easily imagined. Someone’s physical condition may be highly relevant to an issue which must be decided in the litigation, let us suppose, yet ascertainable only through surgery endangering his life or health. That the Court would compel him to undergo the ordeal is unthinkable. The example is an extreme one, to be sure, but it serves my purpose. It shows that the Court will not necessarily assist a litigant to produce evidence which is material and beyond his reach. Justice to his cause, and therefore to him is always important. It is not, however, all that counts. Nor is it to be achieved at any price. Botha J’s dictum does not have so narrow a meaning. Justice on the whole, justice in the round, is the justice which must be done. The disadvantages of the order that is sought must be weighed against its advantages. All its effects must be assessed. All the circumstances must be considered. These must convince the Court that, by and large, more good is likely to come from its intervention than harm. It will not otherwise grant the order. Whether it lacks the power to do so when it is not convinced of this, or whether in that situation it has the power but will never in its discretion exercise such, is a question more of phraseology than of substance. The result is the same, however one chooses to express oneself.”
The above passage received apparent approval in Krygkor Pensioenfonds v Smith 1993 (3) SA 459 (A) at 469G.
17. The third respondent is not prepared to undergo DNA testing. The fourth respondent, despite his apparent willingness to submit to testing some years back while the deceased was still alive, is no longer prepared to do so. Cases in which non-consenting adults have been ordered to undergo blood or DNA tests have generally been confined to instances where the parentage of minor children has been an issue and the courts, as the upper guardian of minors, have acted in what they perceived to be the best interests of the children concerned. We were not referred to any other cases where, in the course of civil litigation, non-consenting adults were ordered to undergo such tests. Particularly in the case of the third respondent any such order would result in the infringement of her fundamental right to bodily integrity and privacy, a right protected under the Constitution. The infringement of that right would not necessarily be justified simply because it might provide valuable evidence in relation to a paternity issue. This is all the more so as the third respondent is not directly involved in the issue that has arisen between the appellant and the fourth respondent – she is effectively a stranger to the litigation. It may well offend the principles of fairness to compel a stranger to litigation to undergo DNA testing to provide one of the parties with evidence on which he hopes to build his case. It is of course axiomatic that if the third respondent should not be compelled to undergo DNA testing, prayer 3 must fail for that reason alone.
 The above considerations; the presumption of legitimacy that operates in the fourth respondent’s favour; the long period over which the fourth respondent’s legitimacy appears to have been accepted, or at any rate to have gone unchallenged; the fact that the deceased’s (seemingly belated) claims that the fourth respondent was not his son lack persuasion particularly because he never persisted with litigation instituted in that regard; the fact that it has not been shown that the DNA testing contemplated would inevitably resolve the issue of the fourth respondent’s legitimacy; the consideration that according to Lesotho custom the fourth respondent is regarded as the deceased’s legitimate son; the concerns and wishes of the family; the general inadvisability of disturbing the existing order of things; and reviving an issue which had seemingly been put to rest, all militate against the granting of the orders sought. To the extent that the judge a quo had a discretion whether or not to grant the orders sought, and exercised such discretion against the appellant, there is no justification for interfering with the exercise of that discretion. Were this Court to have sat as a court of first instance it too would not have granted the orders sought. It follows that the appeal falls to be dismissed.
 It was argued on appeal that in the event of the appeal failing the resultant costs order should be similar to that made in the court a quo i.e the respondents should only be awarded half of their costs. Whatever the justification might have been for such an order in the court below, I see no reason why the third and fourth respondents should be deprived of any of their costs of appeal. The appellant sought to challenge the court a quo’s decision, was unsuccessful, and there is no reason why the normal rule that costs should follow the result should not apply.
 In the result the appeal is dismissed with costs.
JUSTICE OF APPEAL
I agree: ________________________
JUSTICE OF APPEAL
I agree: ________________________
JUSTICE OF APPEAL
FOR APPELLANT: ADV. R. THOAHLANE
FOR RESPONDENT: MR. E.H. PHOOFOLO