Revising spousal testimonial privilege and marital communications privilege in South African Criminal procedure: is abolition or extension the answer? (Part 1)

• Pages: 446-468
• Author: Goosen, S.
• Published date: 03 November 2020
• Citation: (2020) 33 SACJ 446
• Date: 03 November 2020

Revising spousal testimonial

privilege and marital

communications privilege in

South African Criminal procedure:

is abolition or extension the

answer? (Part 1)

SAMANTHA GOOSEN* AND NICCI WHITEAR-NEL**

ABSTRACT

Spousal testimonial privilege and marital communications privilege are

distinct concepts, but both are underpinned by the same policy rationale:

The desire to protect the sanctity of the marriage relationship, encourage

communication between spouses, and to prevent a spouse from being

faced with the moral dilemma of either telling the truth and risking the

relationship or committ ing perjury to avoid incriminating the other spouse.

Collectively, spousal testimonial privilege and marital communications

privilege are referred to as the marital privileges in this article. The

law indicates a clear policy choice in favour of protecting the marriage

relationship as opposed to the public i nterest in ensuring that the max imum

relevant evidence is placed before the court, by virtue of the existence

of the marital privileges. In part one of this two-part article, the authors

discuss the marital privileges and the rationales underpinning them. Then

the article considers the problems with the marital privileges and whether

the law needs reform. The authors discuss whether the marital privileges

should be extended to include cohabitant life partners. It is argued that

the law on marital privileges is arbitrary and incoherent and does not

adequately reect or take into account the types of relationships that exist

in multicultural South African society. In part two, the authors discuss the

position as regards the marital privileges in a constitutionally comparable

democracy – that of Can ada. Also considered is t he position adopted by the

European Court of Human Rights in respect of the marital communications

privilege in the Netherlands.

*LLB LLM (U PE) PhD (UKZN), Lect urer, School of Law, University of KwaZulu-Natal,

Pietermaritzburg.

**BA LLB (UN) LLM (UKZN), Senior Lecturer, School of Law, University of KwaZulu-

Natal, Pietermaritzburg.

446

(2020) 33 SACJ 446

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1 Introduction

In terms of s 195(1) of the Criminal Procedure Act 51 of 1977,1 a spouse

generally cannot be compelled to testify for the prosecution against

the other spouse, save in respect of certain specied categories of

offences. They include offences involving the person of the spouse or

children of either spouse; prostitution-related offences; and the sexual

exploitation of children or the mentally disabled.2 This is known

as spousal testimonial privilege. In addition, spouses may claim

marital communications privilege in respect of communications made

between them during their marriage in terms of s 198 of the Criminal

Procedure Act 51 of 1977.3 Section 199 of the Criminal Procedure Act

51 of 1977 further provides that each spouse may refuse to answer a

question which the other spouse could not have been compelled to

1 Section 195(1) of the Criminal Procedure Act 51 of 1977: ‘The husband or wife of

an accused is competent to give evidence against the accused in a criminal trial

but is not compellable to do so unless the accused is charged with: (a) any offence

committed aga inst the person of either of them or a chi ld of either of them; (b) any

offence under Chapter 8 of the Child Care Act, 1983 committed in respect of any

child of either of th em; (c) any contravention of any provision of sect ion 31(1) of the

Maintenance Act, 1998; (d) bigamy; (e) incest; (f) abduction; (g) any contravention

of any provision of sections 2, 8, 10, 12, 12A, 17 or 20 of the Sexual Offences Act,

1957; (gA) any contravention of any provi sion of section 17 or 23 of the Crimina l Law

(Sexual Offences and Relate d Matters) Amendment Act, 2007; (h) perjury com mitted

in connection wit h … any judicial proceedings instit uted … by one of them against

the other, or in connection with … criminal proceedings in respect of any offence

included in this subsection; or (i) the statutor y offence of making a false statement

in any afdavit or any a frmed, solemn or attes ted declaration [associated with s uch

criminal proceedings].’

2 BC Naude ‘Spousal competence and compellability to testify: A reconsideration’

(2004) 17 SACJ 325. The exceptional categories of offences listed in s 195(1)(a)–(i)

of the Criminal Procedure Act 51 of 1977 existed before the amendment to the

section making spouses competent for the prosecution on 3 October 1988. The

list of exceptions has been amended, for example by s 68(2) of the Criminal Law

(Sexual Offences and Related Matters) Amendment Act 32 of 2007, which added

para (gA) to the l ist and amended certain of the ot her items in the list. See, also, S v

NV 2017 (3) NR 700 (HC), where the Namibian high court was c alled upon to decide

whether s 195(1) was contrary to art 12(1)(f) of the Namibian Constitution, which

provides that ‘[n]o person s shall be compelled to give testimony agai nst themselves

or their spouses’. The cour t decided that s 195 was consistent with the values of t he

Constitution, b ecause it compelled spouses to testif y against each other in offences

involving the person of t he spouse or their children, thu s enabling the protection of

the family, which was const itutionally protected in art 13 (3) of the Constitution.

3 Naude op cit (2) at 327 has noted that the rules of spousal testimonial privilege

and martial communication privilege are sometimes referred to as the ‘adverse

testimonial p rivilege’ and the ‘condential commu nications privilege’. This has also

been the trend in both the American and Canadian jurisdictions. In this respect,

see KA Connor ‘Critique of the marital privileges: An examination of the marital

privileges in the Un ited States military th rough the state and federal approaches to

the marital pr ivileges’ (2001) 36: Valparaiso U L Rev 119 at 130.

Revising spousal testimonial privilege and marital

communications privilege 447

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