Recognition of a parent-child testimonial privilege in South African Criminal Procedure: Lessons from the United States of America

• Jurisdiction: South Africa
• Pages: 259-284
• Citation: (2008) 21 SACJ 259
• Date: 27 May 2019
• Author: Melanie Fourie
• Published date: 27 May 2019

Recognition of a parent-child

testimonial privilege in South African

Criminal Procedure: Lessons from

the United States of America

MELANIE FOURIE*

Introduction

A, B, C, D and E are arrested on suspicion of murder. ‘A’ appoints a

legal representative and conf‌ides in him. 17-year-old ‘B’ conf‌ides in

his mother. ‘C’ conf‌ides in his father, who happens to be a lawyer

and who is to represent ‘C’. ‘D’ is married and conf‌ides in his wife. ‘E’,

who is also married, conf‌ides in his wife but his 16-year-old daughter

overhears the conversation. All third parties are subpoenaed to testify

at the subsequent criminal trial.

While s 192 of the Criminal Procedure Act1 provides for all persons,

in principle, to be competent and compellable witnesses in criminal

proceedings, certain private testimonial privileges operate which have

the effect of depriving the court of relevant information in the sense

that the witness who has the privilege is a competent, but not a com-

pellable, witness for the State.2

It is important to note that a distinction must be drawn between

competence of a witness, compellability of a witness and the witness

refusing to answer a question by claiming a privilege, since only a

competent and compellable witness may claim a privilege.3 Cohen and

Carter explain the distinction between these concepts as follows:

* LLB LLM (Stell), Advocate of the High Court of South Africa. I would like to express

my sincere thanks to Prof Julia Sloth-Nielsen and Adv Theuns Möller for their valu-

able comments on the draft of this article.

1 Criminal Procedure Act 51 of 1977.

2 PJ Schwikkard & SE van der Merwe Principles of Evidence 2ed (2002) 116.

3 BC Naudé ‘Spousal competence and compellability to testify: A reconsideration’

(2004) 17 SACJ 325 at 327 and the authority cited there.

ARTICLES

259

(2008) 21 SACJ 259

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‘A competent witness is a person who the law allows a party to ask, but not

to compel, to give evidence. A compellable witness is a person whom the law

allows a party to compel to give evidence. There are certain questions which

a witness may refuse to answer if he so wishes. He is said to be privileged

in respect of those questions. It is clear, therefore, that competence without

compellability (or bare competence) is not the same as privilege. Compel-

lability is concerned with whether a witness can be forced by a party to give

evidence at all. Privilege is concerned with whether a witness who is already

in the box is obliged to answer a particular question.’4

Private privileges are directed at protecting the interests of individuals5

and arise when the general policy, ie that justice is best served when

all relevant evidence is considered,is outweighed by some other policy

consideration.6

The common law legal professional privilege7 and the marital privi-

lege8 are examples of private privileges, each with their own distinct

underlying policy considerations. However, no parent-child testimonial

privilege is recognised by South African courts.9

Applied to the scenario sketched above, ‘A’and ‘C’ can invoke the

legal professional privilege to prevent their legal representatives (in C’s

case, also a parent) from disclosing any conf‌idential communication

made to them, and the wives of ‘D’ and ‘E’ can rely on their marital

privilege and refuse to divulge any information communicated to them

4 Z Cowen & PB Carter (eds) Essays on the Law of Evidence (1956) 220, as quoted in

Schwikkard & van der Mer we op cit(n2) 391. As far as spouses are concerned in the

South African context, a distinction is drawn between cases where the spouse of an

accused testif‌ies on behalf of the defence and cases where the spouse testif‌ies on

behalf of the prosecution. In the former case the witness spouse is both competent and

compellable. In the latter case the witness spouse is a competent witness, but can, as

a rule, not be compelled to testify. The spouse can, however, be compelled to testify

in cases listed in s 195(1)(a)-(i) of the Criminal Procedure Act 51 of 1977 (Schwikkard

& van der Merwe op cit (n2) 397 and the authority cited there). Legal professionals

are competent to testify in cases in which they are professionally involved, but it is

extremely undesirable that they do so (R v Nigrini1948 (4) SA 995 (C)).

5 Schwikkard & van der Merwe op cit (n2) 116.

6 DT Zeffertt, AP Paizes & A St Q Skeen The South African Law of Evidence (2003)

517.

7 Section 201 Criminal Procedure Act 51 of 1977.

8 Sections 198 and 199 Criminal Procedure Act 51 of 1977. Note that in terms of the

Criminal Procedure Act 51 of 1977 ‘marriage’ includes a customary marriage or cus-

tomary union concluded under the indigenous law and custom of any of the indig-

enous peoples of the Republic of South Africa or any marriage concluded under any

system of religious law. Therefore, it is suggested that all that is required is that the

union comply with the requirements set either by the custom or religion in question.

Further, in terms of s 13(2) of the Civil Union Act 17 of 2006 any reference to ‘mar-

riage’ will include a civil union. The terms ‘marriage’, ‘marital’, ‘spousal’ and ‘family’

should therefore be read to include not only valid civil marriages, but also customary

marriages, religious marriages and civil unions.

9 Schwikkard & van der Merwe op cit (n2) 142.

260 SACJ.(2008) 3

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