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Court rejects DNA test request

Nat Molomo
MASERU — The High Court has dismissed an application calling for DNA tests to determine who should succeed the late principal chief of Sebapala and Quthing, Tšepo Nkuebe.
The second-born son of the late chief, ‘Neko, had filed an urgent High Court application after the family had nominated his elder brother Hlabathe to succeed the late chief who died on May 5 this year.
In his founding papers, ‘Neko had wanted his brother to undergo a DNA test, insisting his father had once said Hlabathe was an “illegitimate” son.
‘Neko further wanted to see the letter written by family members in their nomination of Hlabathe. 
But Justice Tšeliso Monaphathi threw out the application, saying it would be unprecedented to grant the order.
“I do not allow these prayers in the application; it is not in the interest of justice to grant the relief sought,” Justice Monaphathi observed.
“But the court cannot ignore that the issue concerns chieftainship. It involves serious policy considerations in the politics of this country.”
The judge recalled the fourth respondent in the case, Hlabathe, had acted as principal chief on various occasions when his father was suspended, adding these appointments had the support of both the family and local chiefs.
The court said attempts by the late chief to apply for a DNA test — which he later withdrew citing the protection of his family — were belated as Hlabathe was already 50 years of age.
He said to order a blood test on Hlabathe and his aunt ‘Malesang Mojela, the third respondent in the case, would be stretching the matter too far.
Justice Monaphathi said: “Even if the DNA test were to reveal the truth, what is important to me is whether that would be in the interest of justice.”
In his affidavit, ‘Neko had said a DNA test would confirm the eligibility of Hlabathe for the chieftainship.
“I am asking this honourable court to direct the third and fourth respondent and myself to submit to DNA testing within a week of the granting of this order, at Bloemfontein Medi Clinic Pathcare,” he said.
“I also undertake to incur the costs of carrying out the DNA, including travel expenses.
 “I can remember my father had always been saying the fourth respondent is an illegitimate son.” 
But the court said there is no legislation in this country providing for DNA testing.
“Even if the court were to do so, it would be something which is not in the constitution. In South Africa, where it is done, it is only for the protection of children,” Justice Monaphathi said.
The judge said counsel for the respondent, Haae Phoofolo, had argued there was no reason why such a law should be applied on unwilling persons. 
“In this case, there are no compelling or exceptional circumstances,” he said.
“Even if the court were to do so, it would be influenced by strong policy considerations.
“There are no good grounds to make such an order, because the applicant does not have independent evidence.
“This makes the applicant’s case difficult, because he depends on hearsay — on what he says he was told by his father.” 
After the judgment, Hlabathe Nkuebe said:  “I am glad that up to now justice has been done and I would be glad to see the courts continuing to do justice.”

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