A Pretoria High Court judge is refusing to pay child maintenance to his former lover, saying the paternity-test results showing a 99,99 percent probability that he is the father of her illegitimate son are inconclusive.
Judge Ntsikelelo Poswa - who was recently criticised by the Supreme Court of Appeal when he released two suspected murderers on bail - is involved in a maintenance dispute with his former lover, Yolisa Maya, 48.
The Star is in possession of a sworn affidavit in which Maya, a special legal adviser to Foreign Affairs Minister Nkosazana Dlamini-Zuma, states that she and Judge Poswa were involved in a relationship in 1992 and that she conceived a child, who is now 13 years old.
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Maya says she had an on-and-off relationship with Judge Poswa for seven years. When her son was born, in January 1993, she says she did not want to question the child's paternity with the judge as "I knew there was a likelihood he might not be the father of my son". When the boy was conceived she had just ended a relationship with another man.
In 2001 she raised the issue of paternity with Judge Poswa and they agreed to undergo blood tests. "The results came out showing that there was a 99,99 percent probability that he (Poswa) was the father. Up to that point he had not had a relationship with my son. He accepted the results, came and introduced himself to the child as his father and started paying maintenance of R1 000 a month," Maya states in her affidavit.
"However, he paid for four months, then told me he was opting out as he had been advised that blood tests were not conclusive proof of paternity."
It was then that she took the matter to the maintenance court. Judge Poswa told the presiding magistrate that as Maya had been involved with another man, that man should undergo paternity tests. The magistrate agreed with the judge, and it was then that she lost interest in the matter and abandoned it.
In August last year, however, Maya began pursuing the issue again because she felt "my son will continue being dealt an injustice". She persuaded Judge Poswa to undergo genetic profiling because she was advised that that was conclusive.
"We were tested together with the child at Jacaranda Hospital. The results came out reflecting (99,99 percent) the same degree of probability that he is the father. Once again he told me that he would not accept the results unless they specifically stated that there was a 100 percent probability that he is the father," says Maya.
"His rationale for this attitude was that there was a chance that, out of the remaining 0,01 percent, there could be someone whose genetic make-up was identical to his."
After Judge Poswa once again refused to accept the results, Maya went back to the maintenance court to seek relief.
During the hearing in July this year, the magistrate, a Mr Von Reich, claimed he could not recall the 2001 hearing he had presided over, and suggested that the matter be heard by another presiding officer, says Maya, adding that Von Reich had indicated this was because the court record could not be found and he had lost his own handwritten notes.
When the matter resumed in August, the magistrate ruled that he was withdrawing and that the case would have to start afresh before another presiding officer.
"Judge Poswa has since filed an application for review of the magistrate's decision, with the purpose that the magistrate must change his mind, reconstruct the lost record of proceedings and continue with the matter again. As such we are now waiting for the High Court to allocate a date for the hearing of the review proceedings," states Maya in her affidavit.
She adds that she felt frustrated and aggrieved by the delaying tactics applied by Judge Poswa. "In my matter there are two sets of results: blood tests and genetic profiling. However, the respondent is walking all over the law, claiming he will only admit responsibility if the results reflect 100 percent probability of his paternity - something I've never heard of.
"The respondent is a judge of the honourable High Court of this country who is expected to dispense justice and pronounce objectively on matters of this nature. However, he seems not to respect the very laws that he is supposed to interpret in the performance of his mandate as a judge ... What chance do we stand as women of this country when we are made to appear before a so-called judge who appears to hold a callous disregard of his own laws?"
Judge Poswa refused to comment. "As this matter is sub judice, what can I as a judge say?" he stated.
- This article was originally published on page 1 of The Star on October 27, 2006
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