Landmark ruling tightens DNA testing standards in inheritance disputes
staff writer | Tuesday April 28, 2026 09:17
In the case of Janet Kelibone Phale v Executor of the Estate Late Samuel K Same & Another, the court dismissed an application by the deceased’s sister seeking a DNA test on a minor child to determine whether she was the biological daughter of the deceased. The applicant’s stated aim was to clarify the rightful beneficiaries of the estate.
At the heart of the ruling is a reaffirmation of the principle that the best interests of the child are paramount. Whilst the court acknowledged its inherent power as upper guardian of minors to order scientific tests, it emphasised that such orders are not automatic and must be justified by compelling circumstances. Justice Kebonang underscored that determining a child’s best interests is a fact-driven, case-by-case exercise, involving not only physical and economic considerations but also emotional and psychological well-being. In this case, the court found that subjecting the child to DNA testing—motivated primarily by inheritance concerns—would be “entirely antithetical” to those interests. A major jurisprudential contribution of the judgment lies in its firm rejection of speculative litigation. The applicant failed to provide concrete evidence casting doubt on the child’s paternity, relying instead on suspicion and uncorroborated statements.
The court held that mere suspicion is insufficient to justify invasive scientific testing. It also held that applicants must present prima facie evidence of genuine uncertainty regarding paternity. The ruling also holds that courts will not assist litigants in 'fishing' for evidence through DNA testing. This reinforces the burden of proof principle in civil litigation: a party must stand or fall on the strength of their founding papers. The judgment also affirms the evidentiary status of birth certificates in Botswana law. Justice Kebonang held that a birth certificate constitutes prima facie proof of paternity, which can only be displaced by strong, credible evidence such as fraud or error.
In the present case, the deceased was named as the father on the child’s birth certificate and had accepted and actively participated in the child’s upbringing, further strengthening the presumption of paternity. Perhaps the most far-reaching aspect of the ruling is its clarification of locus standi (legal standing) in paternity disputes.
The court held that: only individuals with a direct and legally protectable interest may challenge paternity. The court also said a sibling of the deceased has no automatic right to question the paternity of a child acknowledged by the deceased. The Court also said under Botswana law, particularly the Affiliation Proceedings Act, the right to dispute paternity primarily lies with the putative father himself.
The applicant was thus described as a “meddlesome interloper”, lacking the necessary standing to bring the claim.
In a notable social observation, the court rejected outdated notions of legitimacy tied to marital status. Justice Kebonang pointed out that a significant proportion of children in Botswana are born outside formal marriage and should not be treated differently.
The ruling affirms that biology does not override lived parental relationships, especially where the father has accepted responsibility. It also stated that the law must reflect contemporary social realities, including single-parent and non-traditional family structures. The court was particularly critical of attempts to use paternity disputes as a tool to influence inheritance outcomes. It concluded that the application was, in substance, an effort to disinherit the child and access the deceased’s estate.
Justice Kebonang warned against allowing family members to create “uncertainty and insecurity” for children by litigating paternity posthumously without justification.
The application was dismissed with no order as to costs. This judgment marks a decisive shift towards protecting children from intrusive litigation, reinforcing evidentiary standards, and clarifying who may legitimately challenge paternity. It is likely to have an enduring influence on family law, estate disputes, and broader development.