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

• Citation: (2020) 33 SACJ 446
• Published date: 03 November 2020
• Author: Goosen, S.
• Pages: 446-468
• 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 testimoni al privilege and mar ital communications pr ivilege are

distinct concepts, but b oth are underpin ned by the same policy ration ale:

The desire to protect the sa nctity of the mar riage relationship, encourage

communication bet ween spouses, and to prevent a spouse from being

faced with the moral dilem ma of either telling t he truth and risk ing the

relationship or committ ing perjury to avoid incriminati ng the other spouse.

Collectively, spousal testimonia l privilege and marit al communications

privilege are referred to as t he marital priv ileges in this ar ticle. The

law indicates a clear policy choice i n favour of protecting the mar riage

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 ex istence

of the marital pr ivileges. In part one of t his two-par t article, the authors

discuss the mar ital privileges and t he rationales underpi nning them. Then

the article considers t he problems with the marit al privileges and whether

the law needs reform. The authors d iscuss whether the ma rital privileges

should be extended to include cohabitant li fe partners. It is arg ued that

the law on marital pr ivileges is arbitrar y and incoherent and does not

adequately reect or take into account the t ypes of relationships t hat exist

in multicultur al South Afric an society. In part two, the authors d iscuss the

position as regards the ma rital privileges i n a constitutional ly comparable

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

European Court of Hum an Rights in respec t of the marital com munications

privilege in the Net herlands.

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

Pietermaritzburg.

** BA LLB (UN) L LM (UKZN), Sen ior Lecturer, School of L aw, 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 testif y for the prosecution against

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

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

children of either spouse; prostitution-r elated offences; and the sexual

exploitation of children or the mentally disabled.2 T his is known

as spousal testimonial pr ivilege. In addition, spouses may claim

marital communication s privilege in respect of communication s made

between them during their m arriage in terms of s 198 of the Cri minal

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 P rocedure Act 51 of 1977: ‘The husband or wife of

an accused is competent to g ive evidence agains t the accused in a cr iminal tr ial

but is not compellable to do so un less the accused is ch arged 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 th e Child Care Act, 1983 com mitted in respe ct of any

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

Maintenance Act, 199 8; (d) bigamy; (e) incest; (f) abduction ; (g) any contravention

of any provision of section s 2, 8, 10, 12, 12A, 17 or 20 of the Sexu al 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 connect ion with … crim inal proceedi ngs in respect of any of fence

included in this s ubsection; 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 proce edings].’

2 BC Naude ‘Spousal competenc e and compellabilit y to testify: A reco nsideration’

(2004) 17 SACJ 325. The exception al categories of offence s listed in s 195(1)(a)–(i)

of the Crimi nal Procedure Act 51 of 1977 exist ed before the amendment to t he

section maki ng spouses competent for the pro secution on 3 Octobe r 1988. The

list of exceptions ha s been amended, for example by s 6 8(2) of the Crimina l Law

(Sexual Offences and Relate d Matters) Amendment Ac t 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 C onstitution, wh ich

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 o f spousal testimo nial privilege

and martia l communication pr ivilege are someti mes referred to as the ‘advers e

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

been the trend in bo th the Americ an and Canadian j urisdiction s. In this respe ct,

see KA Connor ‘Cr itique of the mar ital privileges: A n examinatio n 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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