A child, DNA test, estate fight: court draws the line
Mpho Mokwape | Wednesday April 29, 2026 06:00
At its core, the judgment reinforces a principle that often gets overlooked in estate battles, that suspicion is not evidence. In this case, Kebonang dismissed an application by a woman who wanted her late brother’s child to undergo a DNA test to prove paternity. Janet Kelibileone Phale attempted to anchor her claim on alleged private statements by her late brother, Samuel Khuto Same. But without corroboration, the court treated this as hearsay, legally weak, and insufficient to disrupt an established parent-child relationship.
Judge Zein Kebonang ruled recently that her claims were based on suspicion and that she had no legal standing to make such a demand. 'The deceased himself never questioned the child's paternity. You have no right to interfere, let alone force a DNA test on a child,' Kebonang said. The case was brought by Phale, the half-sister of the late Samuel Khuto Same, who died in 2024. She asked the court to order that a minor child, born in 2020, be subjected to DNA testing to confirm whether she was truly her brother’s biological daughter.
Phale argued that establishing the child’s paternity was important to determine who should inherit from the deceased’s estate. She told the court it would be in the child’s best interest “to be sure about her identity” and not risk losing an inheritance if she was indeed the deceased’s child. The child’s mother, opposed the application. She said there was no legal basis for the request and accused the applicant of trying to disinherit the child. According to court papers, the deceased and the child's mother were in a relationship that led to the birth of the child. The mother stated that the deceased had accepted the child from birth, was involved throughout the pregnancy, and actively participated in the child’s life until his death. She also told the court that the deceased’s name appears on the child’s birth certificate and that his family, including the applicant, publicly acknowledged the child during his funeral. The mother further revealed that the applicant had personally led a delegation to her family to recognise both the pregnancy and the child at birth.
In his ruling, Kebonang said there was no evidence showing real doubt about the child’s paternity.
“There is nothing in the applicant’s founding papers that demonstrates a genuine uncertainty as to the paternity of the minor child,” he stated.
The judge noted that the applicant relied mainly on what she claimed her late brother had told her, without providing supporting evidence.
He described this as uncorroborated hearsay.
“The applicant provides nothing more than her ‘strong’ suspicions,” the judgment read, adding that suspicion alone is not enough to justify a DNA test.
Kebonang also emphasised that the deceased himself had never questioned the child’s paternity during his lifetime.
“At no point during his lifetime did the deceased challenge his paternity. He had four years within which to do so, but elected not to,' the judge said.
The court further found that the application was not truly about the child’s best interests but appeared to be aimed at excluding her from inheritance.
“It would be entirely antithetical to the child’s best interests to subject her to a DNA test motivated by a desire to exclude her from her potential inheritance,” the judge said.
On the legal issue of standing, the judge ruled that the applicant, as an aunt, did not have the right to challenge the child’s paternity.
It said only a person with a direct and substantial interest, such as the father, could raise such a claim.
He explained that the applicant has no standing to challenge or dispute his brother’s parentage when her own brother never took issue with it.
The court described her involvement as interference, calling her “a meddlesome interloper” with no legal right to pursue the matter.
The judge also pointed to the child’s birth certificate as important evidence, noting that it names the deceased as the father.
Whilst not final proof, the court said it remains valid unless overturned by stronger evidence such as fraud or mistake.
In the end, the court found no compelling reason to order a DNA test and ruled that the application failed to meet the required burden of proof. The court’s view was blunt and indicated that an aunt, regardless of her stake in the estate’s outcome, does not have a “direct and substantial interest” in determining paternity. That right primarily belongs to the father, or in some cases, the child. By shutting the door on extended relatives, the ruling limits the potential for estate disputes to spiral into broader family interference.
The judgment also leans heavily on the concept of social parenthood. Evidence showed that the deceased had acknowledged the child publicly, participated in her upbringing, and allowed his name on the birth certificate. In many legal systems, including Botswana’s, such conduct carries significant weight. It suggests that paternity is not purely biological, but it is also behavioral and relational.