A LIMPOPO attorney is fighting tooth and nail after the High Court in Limpopo ordered him to pay maintenance for a child he claims is not his.
Attorney Charles Chabalala believes the ruling was unfair because he had a vasectomy in February 2010, 13 years before the child was born in August 2023.
He said the necessary scientific and medical records were submitted but ignored by Judge Thogomelani Tshidada, who made his ruling in December 2023.
Tshidada ordered that Chabalala pay for the child’s maintenance at R9 000 per month.
Chabalala said he also undertook a sperm count on the day the child was born, and was found to have no sperm in his semen. He said it was concluded that he could not naturally impregnate a fertile woman.
Following Tshidada’s court order, Chabalala approached the Children's Court in Malamulele, seeking a paternity test.
However, the mother of the child, Nsovo Maluleke — a sister to embattled advocate Kevin Maluleke — blocked this attempt and brought an appeal. The lawyers said this appeal had yet to be prosecuted.
They said Maluleke, through her attorneys, Ntsako Phyllis Mbiza Attorneys, was requested in writing in three different letters to submit the child for the paternity test, but she claimed that Chabalala had not given a legal, sound reason why the child should submit to a paternity test.
Maluleke declined to comment on Wednesday, adding that the issues were sub judice and before the appropriate forum, which was the court of law.
Judge Tshidada has directed that he is not going to respond to the enquiry. The legal teams involved in the matter know the rules and procedures to follow if not satisfied with the manner in which the matter was dealt with, and not through the media.
In a letter written to Ntsako Phyllis Mbiza, Chabalala’s lawyers, Burger & Huyser Attorneys said the elimination of the paternity dispute would:
- Be in the child’s best interest.
- Significantly minimise legal costs and narrow disputes between the parties, especially taking into account the number of court appearances in a short amount of time, which has resulted in excessive legal costs.
- “Be to your client’s benefit in terms of section 37 of the Children’s Act 38 of 2005 in relation to your client’s credibility due to her unfounded refusal”.
The lawyers requested Maluleke to respond on January 10.
“It is our instruction to proceed with the necessary compel application seeking such paternity testing whereby the minor child shall be subjected to paternity testing to eliminate the paternity dispute and where costs shall be sought from your client due to blatant refusal in the event that we do not receive any response to this letter at the above-mentioned date and time, or in the event where such response is once disregarded without any objective and legal substantiation,” said Burger & Huyser.
In response, Ntsako Phyllis Mbiza said the issue was already addressed in a letter dated October 10, 2023. The attorneys said Maluleke’s position remains the same, that subjecting the child to a paternity test would not serve her best interest.
The medico-legal report, conducted by specialist urologist Dr Raymond Campbell, stated that the 53-year-old lawyer was clinically sterile and incapable of fathering a child by conventional means.
“It is thus near impossible that he could be the father to a newborn child and a high index of suspicion should be employed — enough to warrant a paternity review before assigning the burden of maintenance to him,” read the report.
Burger & Huyser said their client, Chabalala, believes that Tshidada’s order was tainted with fraud and that the judiciary should dissociate itself from orders that are fraudulently obtained.
The attorneys said their investigations found that Maluleke was married to a man known to this paper. The marriage took place on September 2013 and the couple had two children, aged 9 and 13. It has also been revealed that the couple were still together to this date.
“Allegations on this present application, against this newly born baby, is that this man, who is also already married to another person some years ago, is alleged to be the husband to the applicant (Maluleke). On the strength of these allegations, the applicant was granted an order for spousal maintenance for a monthly sum of R12 000.
“When told by the attorney for this man that the woman in this case is not entitled to spousal maintenance but damages for the purported putative marriage, Tshidada just simply laughed her off and alleged she, the attorney, did not know the customs and traditions of blacks as she was white, and asked whether she was married or not,” the lawyers said.