Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2

• Pages: 597-615
• Published date: 04 March 2021
• Author: Goosen, S.
• Date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a5

Revising spousal testimonial

privilege and marital

communications privilege in South

African criminal procedure:

Is abolition or extension the

answer? Part 2

SAMANTHA GOOSEN* AND NICCI WHITEAR-NEL**

ABSTRACT

Although South A frica has not direc tly grappled with whether to ex tend

the protection of the mar ital privileges to cohabita nt life partners, C anada

has. The ‘marital pr ivileges’ refer to spousal testi monial privilege and

marital commu nications privilege, collec tively, in this article. In 2015, the

Canadian legislatu re abolished spousal testi monial privilege. T he marital

communications priv ilege has been retained , and the Canadian cour ts have

considered whether to extend it to cohabita nt life partners or abol ish it. To

gain perspecti ve on whether the marital pr ivileges in South A frica should

be retained but reformed, t he authors discuss the po sition in Canada, a

constitutionally co mparable democracy. The authors consider the scope and

applicability of the ma rital privileges before a nd after the 2015 Canadian

amendments,1 which abrogated spousa l testimonial pr ivilege. The authors

discuss the abrogation of spo usal testimonia l privilege in Canada a nd

consider its relevance in the South A frican context. A lso considered

is why the marital com munications privilege h as been retained. T his

research suggests th at while the central rat ionale for retaining the m arital

communications priv ilege is to foster marital rel ationships and protect the

right to privacy, the rationale of dignit y also plays a key role. The authors

also consider the decision of the Eu ropean Court of Human R ights dealing

with marital com munications privi lege in The Netherlands. Fin ally, it will

be submitted that whiche ver view one takes, the marita l privileges in South

Africa should not be ret ained in their cu rrent form.

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

Pietermaritzburg.

** BA LLB (U N) LLM (UKZ N), Senior Lectur er, University of KwaZulu-Natal,

Pietermaritzburg.

1 Bill C-32, Can adian Victim s Bill of Rights Act, SC, 2015 c 13.

597

https://doi.org/10.47348/SACJ/v33/i3a5

(2020) 33 SACJ 597

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1 Introduction

Since 1988, the South African position has been that spouses are

competent witnesses for the prosecution. They could not, however, be

compelled to testify agains t the accused spouse, save in cases involving

the listed offences in s 195 of the Criminal Procedure Act 51 of 1977.

Another major difference is that un like in South Afr ican law, Canadian

marital communications privilege is absolute. This means that the rule

of spousal incompetency only applies to those who are legally marr ied.

This it has been argued, makes the rule ‘under-inclusive’ since many

benets have been extended to cohabiting couples.2

In the Netherlands, there is no equivalent to spousal testimonial

privilege, but marital communications privilege is provided for in

Dutch law, but is not extended to couples who have not formalised

their unions in the prescr ibed way. This was unsuccessfully chal lenged

in the European Court of Human Rights.

2 Canadian Position

2.1 Position on the marital privileges before the 2015

amendments

The relevant statute governing the marital privileges in Canada is the

Canada Evidence Act.3

Prior to 2015, Canadian law was mostly similar to South Afr ican law.

Section 4(1) of the Canada Evidence Act provided that the husband

or wife of the accused was competent to testify for the defence in a

criminal trial. The section made no mention of whether the spouse

was also compellable in this regard and that question was the subject

of different court decisions.4

Section 4(2) provided that for particular listed offences under the

Criminal Code5 and Youth Criminal Justice Act,6 the husband or

wife of the accused was both competent and compellable for the

prosecution without the consent of the person charged.7 For other

2 H Stewart ‘Spousa l incompetency and the Charter ’ (1996) 34 Osgoode Hall L J 411 at

413.

3 Canada Evidence Act R SC 1985, c. C-5.

4 R v Couture [2007] 2 S.C.R. 517, 2007 SCC 28; R v C (DR) 220 C.C.C. (3d) 2 89, 47

C.R. (6th) 1 at para 39; R v Goss elin 1903 Carswell Que 9, 33 S.C.R. 255, 7 C.C.C. 139

(involving an earlier wordi ng of the section – without t he words ‘for the defence’);

R v Amway of Canada Ltd 1989 Ca rswell Nat 204, 1989 Car swell Nat 690, 68 C.R .

(3d) 97, [1989]1 S.C.R. 21 at para [11].

5 Crimina l Code RSC 1985 c. C-46.

6 Youth Criminal Jus tice Act SC 2002 c.1.

7 Section 4(2) was simila r to s 195 of the Crimin al Procedure Act 51 of 1977 in South

Africa, whic h governs spousal test imonial privilege.

598 SACJ . (2020) 3

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