- Lisakhanya Mpofu was left out of her late father’s estate, even though he had acknowledged her as his daughter and supported her during his life.
- Two DNA tests with the deceased’s brothers did not produce clear answers, but the court found that these results and other evidence were enough to show paternity on a balance of probabilities.
- Judge JW Eksteen ordered the executor of the estate to update the liquidation and distribution account to include Mpofu as an heir.
A 25-year-old woman who grew up never knowing her parents has now been recognised as the biological daughter and rightful heir of a man who has passed away, despite two DNA tests with his brothers that were inconclusive.
Judge JW Eksteen of the High Court in Gqeberha found that scientific uncertainty is not a barrier for a court to determine paternity on a balance of probabilities. Evidence included testimony from the woman’s maternal cousin, the deceased’s own acknowledgement that she was his daughter, and the fact that they built a father-daughter relationship before he died.
On 15 September 2026, the judge declared Lisakhanya Mpofu the biological daughter of the late Siphumle Gade and ordered his executor to update the estate’s liquidation and distribution account to include her as an heir.
A childhood spent without knowing her parents
Mpofu was born out of wedlock on 12 November 2000 to Nomzamo Mpofu. When she was just a few months old, her mother left her with her maternal grandparents. She grew up not knowing who her parents were.
Her mother’s cousin, Noxolo Mpofu, later shared details about her birth. Noxolo explained that she and Nomzamo shared a flat at Seyise in Crossroads, Gqeberha, from 1998 to 2001. During this time, Gade was in a relationship with Nomzamo and often visited their home.
According to Noxolo’s affidavit, Gade came to the flat after Mpofu was born, admitted that he was her father, and promised to pay damages to the family because the child had been born outside of marriage. Nomzamo eventually moved out and left the child with her parents.
Mpofu’s life changed in August 2016 at her maternal grandfather’s brother’s funeral, where she met Noxolo for the first time. Noxolo recognised her and later introduced her to Nomzamo, who confirmed that Mpofu was her daughter and named Gade as the father.
Nomzamo died in November 2016. Before she passed away, Noxolo got Gade’s cellphone number, which allowed Mpofu to contact him while he was in prison. Gade did not deny being her father.
After they first spoke, Mpofu and Gade kept in touch by phone. When Gade was released in 2019, he visited Mpofu at her home, and they formed a father-daughter bond. He accepted her as his child and gave her financial support whenever he could.
Deceased acknowledged his daughter to his former wife
The court also heard from Tsepo Marutha, whom Gade married in 2007 before their divorce in 2011. They stayed in contact from time to time. Marutha said she found out in 2019 about a child in KwaMagxaki, Gqeberha, who was said to be Gade’s daughter.
When she asked him, he admitted Mpofu was his child and explained he had not told her because the child was born outside of marriage. Gade later discussed Mpofu with Marutha and even gave her photos of the young woman.
Marutha said that, as far as she knew, they had developed a healthy father-daughter relationship, even if it was later in life. There was no evidence contradicting this account.
Gade died on 9 September 2021. At his funeral, Mpofu was listed as a speaker in the programme and gave the children’s tribute. An obituary handed out at the funeral also named her as his child.
Mabandla Gade, the deceased’s older brother, acknowledged the obituary and Mpofu’s role at the funeral. He explained that the obituary was put together without his input and that the family had not discussed who would speak.
Estate account excluded Mpofu
After Gade’s death, the executor prepared the liquidation and distribution account but did not include Mpofu as an heir. When Mpofu saw the account, she went to the Master of the High Court’s office with Marutha to explain that she was Gade’s daughter.
The official in charge, Mr Cross, said he did not know she existed and that the executor had told him the deceased had no children. Mabandla continued to insist that he did not know Mpofu. Eventually, everyone agreed that Welcome Gade, the deceased’s brother and executor, would provide a blood sample for DNA testing to see if he was related to Mpofu.
The first test gave an inconclusive result, showing a 57 percent probability that Welcome was Mpofu’s paternal uncle. The executor did not see this as enough scientific proof. A second test was done with Mabandla Gade’s blood, and it was also inconclusive, showing a 67 percent probability he was her paternal uncle.
The dispute then went to court. The main question was whether the available evidence proved Gade was Mpofu’s biological father.
Court distinguishes scientific proof from legal proof
Judge Eksteen explained that the Intestate Succession Act removed the old restrictions that once prevented children born out of wedlock from inheriting from their biological fathers and other relatives. The key question was whether Mpofu had shown she was Gade’s biological daughter.
Section 36 of the Children’s Act states that if a man is proven to have had sexual intercourse with a child’s mother during the time of conception, he is presumed to be the biological father unless there is evidence to the contrary.
The respondents argued that the inconclusive DNA results created doubt about Noxolo’s evidence regarding Gade’s relationship with Nomzamo. The judge disagreed, explaining that scientific certainty and the legal standard of proof are different. In civil cases, a person must prove their claim on a balance of probabilities, meaning the facts are more likely than not to be true.
The judge pointed out that courts can choose the more likely conclusion when weighing different possibilities, even if that conclusion is not the only reasonable one. The DNA results showed that a biological relationship between Mpofu and each of the Gade brothers was more likely than not, even if neither test could prove it scientifically.
Judge Eksteen also noted that scientific uncertainty does not stop a court from making a decision based on the facts and expert opinions in a specific case. As the judgment put it, judicial decisions reflect the facts and testimony of each case and are not intended to be scientific treatises.
Looking at the DNA results along with the uncontested history of Gade’s relationship with Nomzamo and his later acknowledgement of Mpofu, the judge found that the evidence established paternity on a balance of probabilities.
Alleged arrest did not create a genuine factual dispute
The respondents also tried to challenge paternity by arguing that Gade had been arrested and detained around the time when Mpofu was conceived.
In his affidavit, Mabandla claimed Gade had been arrested in December 1999 in connection with an armed robbery in Clearly Park, Gqeberha, and stayed in custody until the case finished in 2003. Alternatively, he referred to a Walmer police case involving the illegal possession of a firearm and a cash-in-transit armed robbery, for which Gade was allegedly convicted.
Judge Eksteen found the second allegation did not hold up because the Walmer case number was for an offence reported in December 2000, after Mpofu was born. The first claim about the 1999 arrest was also not enough to create a genuine factual dispute. The judge noted that the two versions were inconsistent: one said Gade was detained from 1999 to 2003, while the other was based on a complaint from December 2000.
The court considered established legal principles about factual disputes in application proceedings. Judge Eksteen noted that the executor had not called for Noxolo to be cross-examined to test her evidence about Mpofu’s birth and Gade’s relationship with her mother.
The judge accepted Noxolo’s story as credible and found that the arrest allegations did not raise a real dispute of fact. The judgment concluded that Gade’s paternity was proven on a balance of probabilities and Mpofu qualified as an intestate heir.
Home Affairs records not ordered to be changed
Mpofu also asked the court to direct the Department of Home Affairs to change its records to list Gade as her father. However, Judge Eksteen said no argument had been made for that request. There was also no clear legal basis for this order, and no constitutional challenge to the relevant law had been raised.
The court therefore declined to order Home Affairs to amend its records. On costs, Mpofu’s lawyer, Advocate A. Rawjee SC, did not ask for an order against the executor, who was acting in his capacity as administrator of the deceased estate.
The court declared Mpofu the biological daughter of the late Siphumle Gade and an intestate heir in his estate. Welcome Gade was instructed to update the liquidation and distribution account to include her as an heir.
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