Court name
High Court of eSwatini
Case number
4228 of 2010

Paiva v Groening and Others (4228 of 2010) [2011] SZHC 34 (21 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 34
Coram
Mabuza, J

 

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE                        CIVIL CASE NO. 4228/2010

 

In the matter between:

 

BENITA PAIVA                                                     APPELLANT

 

and

         

IVAN JAMES GROENING                                    1ST RESPONDENT

SINDISIWE ZWANE N.O.                                    

MAGISTRATE MANZINI                                      2ND RESPONDENT

ATTORNEY GENERAL                                        3RD RESPONDENT

 

CORAM                                   :         Q.M. MABUZA –J

FOR THE APPELLANT             :         MISS X. SHABANGU OF SIBUSISO

                                                          SHONGWE & ASSOCIATES

FOR THE RESPONDENT         :         MR. S. MAMBA OF SP MAMBA

                                                          ATTORNEYS

 

 

JUDGMENT  21/4/2011

 

 

 

[1]    The appellant, Miss Benita Paiva seeks an order in the following terms:

 

a.     Reviewing and setting aside the judgment of the Manzini Magistrate’s  Court in Case no. 1654/10  delivered on 1st November, 2010.

b.     Ordering that the decision of the Manzini Magistrate’s Court be substituted by a decision dismissing the application brought by the first respondent under Case no. 1654/10; alternatively referring the matters back to the Manzini Magistrate’s Court to be determining de novo (sic);

 

c.     Ordering that pending the finalization of this matter the order of the Manzini Magistrate’s Court in Case no. 1654/10 be stayed;

 

d.     Ordering the Respondent who opposes the application to pay the costs thereof (sic);

 

e.     Ordering further and/or alternative relief.

 

[2]    The brief facts herein are that the Appellant has a minor son named Roberto Manuel Paiva Groening.  Roberto  was born on the 14th February 1999.  He is now 11 years old.  It appears ex facie the papers filed in the Magistrate’s Court that Roberto was born out of wedlock to Miss Paiva.  There is insufficient information placed before the court about Roberto’s conception and now Miss Paiva and Mr. Groening have become protagonists over him.  Did they have a love relationship and if yes when?  Is Roberto the result of that relationship?

[3]    The 1st Respondent filed an application at the Magistrate’s Court in Manzini.  The notice of application sought an order:

 

1.       Directing the Respondent to avail the minor child named Roberto Manuel Paiva-Groening to the applicant  on the 21st May 2010 at 0830 hours at the applicant’s residential place at Manzini, Swaziland for purposes of conducting paternity tests on the same date or so soon thereafter as it may be necessary.

 

2.       Costs of this application in the event that it is unsuccessfully opposed.

 

3.       Further and/or alternative relief.

 

[4]    In support of the notice of application the 1st Respondent deposed to a founding affidavit.  At paragraph 4 thereof he stated that the child Roberto resides with Miss Paiva.  At paragraph 5 thereof Mr. Groening states:

 

“The respondent, from as early as on birth of the aforesaid minor child, alleged and/or claimed that I am the biological father of the aforesaid minor child.  I am not certain whether or not the respondent’s allegation and/or claim relating to paternity of the child is correct and I assert that the only way to achieve certainty on this claim of paternity is by way of conducting paternity tests.”

 

[5]    Miss Paiva in her answering affidavit raised a point in limine that the Applicant had no locus standi to institute these proceedings  against her because he was not the biological father to Roberto as she had never claimed that Mr. Groening was the father of the child.

 

[6]    Miss Paiva responding on the merits responded as follows to Mr. Groening’s assertion at paragraph 4 hereinabove:

 

“5.1   The Applicant as averred above is not the biological father of my child and I have never claimed that he ever was the biological father of my child.

 

5.2     It is further averred that my son and the Applicant are not related in any manner whatsoever.

 

5.3.    Therefore the Applicant has no right to request that I avail the child to him and or at his residence for the purposes of conducting paternity tests because from the onset there has never been any claim on my part to the effect that he is the biological father of my son.”

 

[7]    It is only after Miss Paiva’s responses that Mr. Groening in his replying affidavit sought to establish locus standi in judio as well as a cause of action.  In doing so he introduced new evidence which though essential was never raised in his founding affidavit.  The new evidence also raise disputes of fact.

[8]    It is my considered opinion that the learned Magistrate ought to have upheld the points in limine and dismissed Mr. Groening’s application with costs.

 

[9]    It is my further view that the learned Magistrate ought to have dismissed the application because it is fraught with disputes of fact.

 

[10]  I further hold that an important matter such as this should not have been brought as an urgent matter as too many issues are inevitably overlooked due to urgency.

 

[11]  In the premises the application for review succeeds and the order(s) of the court a quo is hereby set aside with costs.  The 1st Respondent is at liberty to re-launch a fresh application wherein all relevant issues are properly pleaded and ventilated.

 

 

 

 

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND