In the case of MN v BN, the Bloemfontein High Court refused to grant damages to the plaintiff (the former husband of the defendant) who sought compensation for financially supporting a child he later discovered was not biologically his.

Factual background

The plaintiff and the defendant got married in 1991 and divorced in 2012. In 2015, the plaintiff discovered, through blood tests, that their youngest daughter, born during their marriage, was not his biological child. He subsequently instituted a claim for damages against the defendant claiming that:

  1. The plaintiff raised the youngest child for about 18 years under the impression that the child was his biological child.
  2. The defendant represented to the plaintiff or created the impression that the youngest child was the plaintiff's biological child, and that defendant had an exclusive sexual relationship with the plaintiff during the time the child was conceived.
  3. When making those representations, the defendant knew that the youngest child was not the biological child of the plaintiff and she failed to inform the plaintiff.
  4. Alternatively, the defendant had a duty to disclose to the plaintiff that she had an extra-marital affair during the time that the youngest child was conceived, and her failure to disclose this constitutes a fraudulent non-disclosure with the intention to deceive the plaintiff.
  5. As a result of the defendant's misrepresentation or fraudulent non-disclosure, the plaintiff suffered damages in the amount of ZAR1 441 290, being the amount spent by the plaintiff on the maintenance of the youngest child until February 2015.

The defendant's defence was that both parties believed the plaintiff to be the father of the youngest child. The defendant admitted to one extra-marital sexual encounter in which she used contraceptives and they had protected sexual intercourse. Therefore, the defendant testified that she did not consider the possibility that the youngest child was conceived during that sexual encounter. Moreover, at that stage, the defendant and the plaintiff were having unprotected sexual relations.

The defendant further argued that during the subsistence of their marriage, the plaintiff had numerous extra-marital relationships which he never disclosed to him until she caught him. Thus, the defendant argued that she also did not have a duty to disclose her extra-marital sexual intercourse.

Legal issue

The issue before the High Court was whether the defendant had acted fraudulently on the basis of a misrepresentation; alternatively, whether there had been a fraudulent non-disclosure.

Legal principles

To succeed in a claim based on fraud, the plaintiff had to prove on a balance of probabilities that:

  1. a representation must be made by one person to another person. In this case, the plaintiff contended that a non-disclosure amounted to a representation;
  2. fraud must be established in that the person making the representation must know that the representation is false and must intend that the person, to whom the representation is made, will act on the representation;
  3. there must be causal link in the sense that the representation must have induced the person to whom the representation was made to act in response to it;
  4. if damages are claimed, it must be alleged that the person to whom the representation was made suffered damages because of the fraud;
  5. if reliance is placed on fraudulent non-disclosure, facts giving rise to the duty to disclose must be set out. It is also necessary to show that the breach of the duty to disclose was deliberate and intended to deceive.

Fraud based on misrepresentation

The High Court found that there was no evidence that the defendant actively or pertinently made any representations or lied to the plaintiff about her one-night stand sexual encounter. She merely kept her silence. Furthermore, the plaintiff never confronted the defendant about a possible extra-marital affair, even when he suspected that there was one and that the youngest child was not his biologically. The High Court, therefore, held that there had not been any misrepresentation by the defendant.

However, even if a misrepresentation is established, the plaintiff had failed to prove that it was a fraudulent misrepresentation since it had not been established that the defendant knew that the youngest child was not the biological child of the plaintiff. Therefore, the High Court could not find that the defendant made such representation intentionally whilst knowing that it was false or untrue.

Fraud based on a fraudulent non-disclosure

The plaintiff argued that the defendant had a duty to disclose to him that she had an extra-marital affair during the time the youngest child was conceived, which she failed to do with the intention to deceive the plaintiff.

Liability for failing to act is generally restricted. For reasons of public policy, the law is reluctant to assume too readily the existence of a legal duty in these instances. Furthermore, wrongfulness of a failure to speak depends on the existence of a duty to speak. If no such duty existed, the silence is not wrongful. The criterion for determining the existence of a duty to speak lies in the legal convictions of the community.

The High Courts relied on various foreign judgments to determine whether there is a legal duty to disclose an extra-marital affair. In the Australian judgment of Magill v Magill, it was held that:

"130. There is currently no recognised legal or equitable obligation, or duty of care, on a spouse to disclose an extra-marital sexual relationship to the other spouse during the course of a marriage. There is a mantle of privacy over such conduct which protects it from scrutiny by the law...

... The trust and confidence required between marriage partners must be supplied by them; it cannot be provided by legal norms and duties in the same way as those norms and duties may regulate commercial interactions"

The High Court also referred to a Canadian judgment of D'Andrade v Schrage, where the Superior Court of Justice held:

"Marriage is still a private domain and the public, through the judicial system, should not be involved in scrutinising the behaviour of spouses in private matters while they are not involved in the judicial system"

This judgment relied on the case of (D.R.) v. G. (S.E.), where it was held that a wife owes no duty to a husband to tell him that he might not be the father of the child.

Lastly, the High Court considered the South African Constitutional Court judgment of DE v RH, which highlighted the violation of the parties' right to privacy when the state interferes in the intimate personal affairs of individuals.

Relying on the aforementioned case law, the Bloemfontein High Court concluded that there exists no legal duty on one spouse to disclose the existence of an extra-marital affair to the other spouse. Therefore the court concluded that the defendant had no legal obligation to inform the plaintiff of her one-night sexual encounter. Consequently, her failure to have not disclosed this does not constitute a fraudulent non-disclosure as alleged by the plaintiff.

The court also considered the irreparable emotional damage that would be done to the youngest child, her relationship with the plaintiff and the rest of the family and concluded that the plaintiff's claim is also against public policy and thus cannot succeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.