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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Blood Tests

When blood tests may be compulsory

Blood tests can be ordered for two main reasons: to determine whether or not the driver of a motor vehicle has consumed more alcohol than the legal limit, or to determine the paternity of a child.

Testing for alcohol

A driver who is suspected of driving while under the influence of alcohol may be examined by a district surgeon, who will take a specimen of blood for scientific analysis at a state laboratory to ascertain the presence and estimated quantity of alcohol in the driver's blood. Anybody driving with 0,08g of alcohol or more per 100ml of blood commits an offence. If the alcohol concentration of the blood sample is not less than 0,08g two hours after the commission of the alleged offence, it is presumed that the alcohol concentration in the blood was above the legal limit at the time of the alleged offence. In 1996 proposals were published for reducing the legal limit to 0,05g per 100ml of blood.

A person arrested for one of the two drink-and-drive offences (see alcohol and driving) cannot refuse permission for a blood specimen to be taken. People authorised to take specimens are a medical officer of a prison, a district surgeon or, if requested to do so, a police official, a registered medical practitioner or a registered nurse. But the person arrested may insist that another sample be taken by a private medical practitioner at the same time.

Before the court can consider the results of an analysis, the state must prove that the analysis was made by an expert with the necessary skill and that the specimen analysed was that of the accused. This is almost always done by means of an affidavit of the expert who performed the analysis. If the accused challenges the facts in the affidavit, the expert may be called to give oral evidence in court.

If the specimen was contaminated, the results of the analysis might not coincide with the actual alcohol concentration in the blood. For this reason precautions will be taken to prevent, for instance, the cleaning of the syringe or skin with alcohol. The Road Traffic Act, 1989, however, presumes that once evidence of the analysis of the specimen is presented, that the syringe used for obtaining the specimen and the receptacle in which the specimen was sent for analysis were not contaminated by something that could have affected the result. This puts the onus on the accused to prove the contrary. mens rea in the form of culpa (negligence) is an element of these offences. (See criminal liability or responsibility.) Therefore, if an accused was unaware of having imbibed alcohol or a narcotic drug and if, in addition, a reasonable person in the same position would not have known of this, he or she will have a valid defence.

An arrested driver can request that his or her doctor be present when the blood specimen is taken.

Determining paternity

Blood tests are often used to determine paternity, especially in cases involving children born out of wedlock or when a man wishes to prove adultery on the part of his wife: a jilted husband may, for example, wish to prove that his wife conceived a child on a date he was overseas or ill.

The Children's Status Act, 1987, stipulates that if the paternity of a child is at issue in any legal proceedings and a party to those proceedings, say, the alleged father, is requested by the other party to submit himself or a child over whom he has parental authority to a blood test but refuses to do so, it is presumed, until the contrary is proved, that the refusal is aimed at concealing the truth regarding the paternity of the child. This provision, it has been held, does not have the effect of compelling anyone to submit himself or herself or a child in his or her custody to a blood test (Nell v Nell, 1990).

A court can order a blood test on a child at the request of the mother or the alleged father. In determining whether or not to do so, the court will act primarily in the interests of the child, ordering blood tests only if it will be to the advantage of the child for them to be conducted. Thus, if the outcome of a blood test might prove that the man married to the child's mother cannot be the father of her child, the court may well refuse to order the mother to submit herself to a blood test, since the test might have the effect of making the child illegitimate in the eyes of the public and perhaps depriving the child of the support to which it would otherwise be entitled from the mother's husband, who, unless the contrary is proved, is automatically presumed by the law to be the father of her child if the child was conceived or born during the marriage. Consent for a blood test to be conducted on a child born out of wedlock can be given by the mother. The final decision, however, rests with the Supreme Court, which is the upper guardian of all minors and will always act in the best interests of the child.

A blood test can never prove that a particular man is the father, only that he cannot be. If the tests show that the blood group of the alleged father and the child are the same, the probability that he is the father depends on how common the blood group is; the more common the group, the less weight that can be attached to the fact that the man and the child have the same blood group.

A test, known as the HLA system of tissue typing, can establish paternity with a much greater degree of probability. In Van der Harst v Viljoen (1977), the first reported case in which this test was used, the likelihood that the man in question was indeed the parent of a child born out of wedlock was estimated at 99,85 per cent. Although dna testing can prove paternity beyond all doubt, it has not yet been accepted by the courts without evidence.

Case History - The suspicious husband

A husband, suing for divorce, claimed that his wife had committed adultery and that he was not the father of a child conceived during the marriage. He asked the court to grant an order directing the wife to allow samples of her own blood and that of her child to be taken to determine whether it was possible for him to be the father.

  • Mr Justice Didcott held that the Supreme Court, in the exercise of its power as the upper guardian of all minors, can authorise a blood test on a child even against the objections of the parent who is caring for it. But the court has to act in the best interests of the child. It will override the parent's objection when the interests of the child would, in the circumstances, best be served by determining its paternity by means of a blood test. In the circumstances before the court in this case, however, those interests would not be served by ordering a blood test. The child might be found to have been conceived outside the marriage and if that occurred, it would lose its right to receive child maintenance from the husband without being able to claim support from its true father because his identity would not be known.

(Seetal v Pravitha, 1983)

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
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