Pretoria - The Bloemfontein High Court ruled against a man who wanted to claim back over R1.44 million which he had paid towards child maintenance, saying his ex-wife deceived him into believing the child was his.
The man learned through a paternity test that the child (identified as N in court) was not his biologically.
The couple got married in 1991 and had three daughters during their marriage. They divorced in 2012.
Some time around February 2015, the ex-husband learned through DNA tests that N was not his biological child.
Following the results, the ex-husband instituted legal action against his ex-wife, saying she had deceived him into believing that N was his child.
As a result of her misrepresentation, he suffered a loss of R1.44 million which was paid towards maintaining N.
He said his ex-wife created the impression that he was the only man she was intimate with when N was conceived.
He further argued that the ex-wife had a duty to disclose that she had an extramarital affair during the time that N was conceived.
Her failure to inform him constitutes to fraudulent non-disclosure with the intention to deceive him.
Detailing his story, the ex-husband said he had always been suspicious about N because she looked different.
He said N had a medical condition which was not in the health history of their family. Her features were also different to those of their family. At age five, she was taller than an average five-year-old.
He also noticed that her ring finger was longer than her middle finger. She also used chronic medication, which he also paid for.
He said he paid R2,000 maintenance for each child but then, when his ex-wife went to court behind his back to get an increase, an order which was granted, he demanded a paternity test with N.
He said N was 20-years-old when he found out that she was not biologically his. He said he left it to his ex-wife to tell N the truth.
He said had he known that N was not his child, he would have filed for divorce immediately. According to him, infidelity was very important as there was no room for infidelity in their marriage.
In her response, the ex-wife denied deceiving her ex-husband, she agreed that she had sexual intercourse with another man (identified in court as AM) when N was conceived, however, she insisted that she was on contraceptives at the time of the incident and had also used protection.
She added that AM was actually a one-night stand and she was in a vulnerable position when the incident occurred.
Detailing the events surrounding her time of infidelity, she said her ex-husband was working in Pietermaritzburg and would visit now and again.
They had sexual intercourse before he left on Sunday. They never used protection because her husband said in Zulu culture, he was not allowed to use condoms.
On Monday, she met up with AM in Pretoria as he had come for a business meeting from Witbank.
They spent the night together at a hotel as he couldn’t go back home because his car was stolen at the parking lot.
After going their separate ways, they only spoke on the phone for a week or two and they never spoke or saw each other again.
She explained that if she had known that N was AM’s child, she would have embraced the idea of an abortion because hre ex-husband was not happy with N’s pregnancy and had advised her to get an abortion.
Even when N was born, he advised her to give her up for adoption.
She said she was equally shocked by the DNA results.
Explaining how she could have fallen pregnant despite being on contraceptives, she said her ex-husband was pressuring her to lose weight, saying when he married her, she was slim.
Under pressure, she bought a slimming mixture which unbeknown to her, would handicap the contraceptives. This was also confirmed by a doctor who said there was a certain chemical in the system.
She also added that condoms were not 100 percent safe.
She said even though her ex-husband was against infidelity, he had a number of extramarital affairs which resulted in him fathering two more children outside their marriage.
While working in Pietermaritzburg, he had an affair and had a child born in January 1998.
He has a son who was born in 2001 from an affair dating back to 1994.
He also had another affair and said he wanted to marry her in accordance with his Zulu culture. However, the woman died.
When asked why she did not disclose her affair with AM to her ex-husband, she said it was not necessary because her ex-husband never disclosed any of his extra-marital affairs to her.
It was then put to her that the difference was that she did not have to pay maintenance to an illegitimate child, she said she also indirectly contributed to the maintenance of his illegitimate children because there were financial gaps that emerged in the household.
After considering all the evidence, Judge C van Zyl said even though the ex-wife doesn’t deny having an affair, there was no evidence that she actively or pertinently made any false representations against her ex-husband.
Van Zyl said the ex-husband never confronted the ex-wife about a possible extramarital affair on her side, not even when he suspected that she could have been having an affair with a pastor from her church.
He also didn’t ask his ex-wife anything about N’s features, even when he noted some health and bodily features.
“There was consequently no misrepresentation,” Van Zyl said.
“Even if I am to be wrong in my finding with regard to the existence of a misrepresentation, the plaintiff (ex-husband) in any event failed to prove that it was a fraudulent misrepresentation ... I can consequently not find that the defendant (ex-wife) made such representation intentionally while knowing that it was false or untrue.”
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