DNA Fingerprinting and the Substantive Law
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Med Law (1994) 13:307-321 Medicine
and Law
CICML 1994
Law
DNA Fingerprinting and the Substantive
Law
Divya Singh
Advocate of the Supreme Court of South Africa, Lecturer, Department
of Private Law, University of Durban-Westville, Durban, South Africa
Abstract The ability to analyse human DNA has the potential to rev-
olutionize legal proceedings - both civil and criminal - especially those
which turn on biological or genetic evidence. Examining the positive
and negative aspects of DNA fingerprinting, it would appear that the
benefits certainly outweigh any disadvantages. In paternity determi-
nations, DNA fingerprinting renders otiose many of the controversial
concerns, particularly regarding the determination of legal probability,
providing as it does unequivocal evidence of blood relationship. Fur-
thermore, in criminal law, its value is well-documented. The relevant
legislation is already in place, therefore no further legislation is re-
quired to enable South African law enforcement agencies to make use
of the DNA test. The apparently high cost may, however, frustrate its
general application to the civil law but with the assistance of the state
and law societies, the envisaged problem could be alleviated. To date
no other forensic tests rival the accuracy of the DNA test.
1 PRIVATE LAW AND DNA FINGERPRINTING
1 1 Introduction
In Ex Parte Emmerson' the court (per Schutz J) granted an order
'[d]irecting and authorising Dr Lane, ... to conduct appropriate DNA
fingerprinting tests in order to determine the paternity of the unborn
child'.2
For persons with an interest, vested or purely academic, in medical
law, this decision was received with a modicum of real, though constrained,
anticipation. It was the first case in which DNA fingerprinting was ordered
by a South African court.3 The facts were very simple: The applicant was
seven and a half months pregnant when the man, whom she alleged to be
the biological father of her unborn child, was killed in a motor accident. The
mother brought an urgent application to court for an order authorizing and
directing the release of skin and/or blood and/or muscle samples of the de-
ceased by the officer in charge of the mortuary, where the body of the de-
ceased was being kept, to a doctor employed by the South African Institute
of Medical Research. The application also contained a request for an order
to be granted authorizing the doctor to perform certain tests, namely ap-
propriate DNA fingerprinting tests, in order that the paternity of the unborn
child could be ultimately determined.
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