Comment: A privilege for members of the clergy: Smit v Van Niekerk reconsidered

• Jurisdiction: South Africa
• Pages: 74-85
• Published date: 28 August 2019
• Citation: (1997) 10 SACJ 74
• Date: 28 August 2019
• Author: Warren Freedman

74



SACJ •

(1997) 10 •

SAS

A privilege for members of the clergy:

Smit

v

Van Niekerk

reconsidered

Warren Freedman*

1 Introduction

Twenty years ago, in

Smit v Van Niekerk

1976 (4) SA 293 (A), the Appellate

Division, per Rumpff CJ (Jansen JA, Trollip JA, Rabie JA and Corbett JA

concurring), held that in criminal proceedings there are no considerations of

public policy which would entitle members of the clergy to claim a privilege in

respect of communications made to them in their professional capacities by an

accused.

Hoffmann and Zeffertt describe privilege as a right to refuse to disclose

admissible evidence (LH Hoffmann and DT Zeffertt

The South African Law of

Evidence

4 ed (1988) 194). The effect of a privilege is therefore to deprive the

court of relevant evidence. For this reason there has been a tendency in South

African law to restrict the instances in which a privilege may be claimed. Thus

members of the clergy

(Smit v Van Niekerk

supra and

S v B

1980 (2) SA 946

(A)); accountants

(Chantrey Martin v Martin

[19531 2 All ER 691); insurers

•

University of Natal, Pietermaritzburg.

(1997) 10 SACJ 74

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