Spousal competence and compellability to testify: A reconsideration

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 325-346
• Date: 24 May 2019
• Author: BC Naudé

Spousal competence and compell-

ability to testify: A reconsideration

BC NAUDE*

ABSTRACT

Under South African law a spouse called as a witness can only be compelled to testify

against an accused spouse when the latter is charged with a crime falling in a specific

category. In addition, a witness spouse may claim marital privilege when asked to

reveal a communication made to him or her by the accused spouse during their

marriage. The justification for these rules rests on concerns for the institution of

marriage, since marriage is seen as the basis for organisation in society. It is submitted

that this justification is not only unfounded, but that the effect and outcome of the

current rules leave much to be desired. Moreover, it is submitted that these rules are

no longer constitutionally sound, particularly in view of the reality of a modern society

that dictates a richer understanding and recognition of other forms of familial

relationships. Spouses should be subject to the normal obligations to give evidence,

but the court must have a discretionary power to excuse spousal witnesses where the

public interest so requires.

Introduction

In civil matters, a spouse is both a competent and compellable witness for

and against the party concerned.

1

The same rule applies in criminal matters

when the spouse is called to testify on behalf of the defence, whether or not

the accused is charged jointly with any other person.

2

However, a co-

accused cannot compel a witness spouse to testify.

3

Although the spouse of an accused is a competent witness for the

prosecution, he or she can only be compelled to testify in that capacity in

limited circumstances,

4

that is, when the accused is charged with an offence

*



B Iuris, LLB, LLD (Unisa),

Professor of Law, University of South Africa.

1

CWH Schmidt and H Rademeyer

Bewysreg

4ed (2000) 222.

2

Section 196(1) of the Criminal Procedure Act 51 of 1977. This rule also applies to former

spouses about matters that happened

stante matrimonio:

see

S v Taylor

1991 (2) SACR 69 (C).

It is submitted that the rule that one spouse can compel another to testify as a defence witness

is a sound one: cf SB McNicol

Law of Privilege

(1992) 323.

3

Section 196(1) of the Act.

4

The rule of non-compellability will apply even if the marriage is not happy

(S v Groesbeek (1)

1969 (4)

SA 383 (0)) or even if the marriage was specifically concluded to fall under the

protection provided by s 195 (

S v Leepile (3)

1986 (2) SA 352 (W)).

325

(2004) 17 SACJ 325

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326



SACJ •

(2004) 17

falling in specific categories.

5

These categories deal mainly with offences

committed against the person of either of the spouses or of a child of either of

them. Included are the offences of bigamy, incest and abduction, and certain

offences in terms of the Child Care Act 74 of 1983, the Maintenance Act 99 of

1998 and the Sexual Offences Act 23 of 1957.

For purposes of the law of evidence in criminal proceedings 'marriage'

includes a customary marriage or customary union concluded under the

indigenous law and custom of any of the indigenous peoples of the Republic

or any marriage concluded under any system of religious law.

6

The rules referred to above should be distinguished from those applying to

a situation where a spouse is asked to disclose a communication from the

other spouse made during the marriage, either in civil or in criminal matters.

In such an instance the spouse may claim marital privilege and refuse to

disclose that communication.

7

The privilege persists after divorce with regard

to communications made whilst the couple was still married, but widows and

widowers are excluded.

8

Although marital privilege can only be claimed by

the spouse to whom the communication was made and the accused spouse

cannot therefore prevent disclosure of such communication, the Act does

provide that each spouse may refuse to answer a question that the other

spouse could not have been compelled to answer.

9

5

See s 195(1)(a)-(i) of the Act. However, where a spouse voluntarily gave evidence to the

police that is detrimental to the other spouse and is called as a witness for the defence, that

spouse may be cross-examined about the evidence given to the police: see J Kriegler and A

Kruger

Hiemstra Suid-Afrikaanse Strafproses

6ed (2002) 491.

6

Section 195(2) of the Act.

Section 198 of the Act and s 10 of the Civil Proceedings Evidence Act 25 of 1965. Schmidt and

Rademeyer op cit (n1) 566 are of the opinion that s 195 of the Act does not qualify s 198(1).

Therefore, even if a spouse can be forced to testify in terms of s 195(1), he or she can still

claim marital privilege when asked to reveal any communication made to him or her during

the marriage. However, it is submitted that it does not make sense to allow for restrictions in

the testimony. For example, if a husband pointed a gun at his wife and spoke of his intention

to kill her, it would be illogical if the wife could be compelled to testify as to the husband's

actions, but could refuse to testify as to his words: cf the remarks made by the Quebec Court

of Appeal in

R v St. Jean

[1976] 32 CCC (2d) 438.

8

Section 198(2) of the Act and s 10(2) of the Civil Proceedings Evidence Act 25 of 1965. The

privilege applies even if the communication was not made in confidence, as long as it was

made while the spouses were still married: SJ van Niekerk, SE van der Merwe and AJ van Wyk

Privilegies in die Bewysreg

(1984) 192. This is contrary to the principles underlying other

privileges and is illogical: see in general GA Barton

The competence and compellability of

spouses to give evidence in criminal proceedings and the confidentiality of marital

communications

LLM (UNISA) (1977).

9

See s 199 of the Act and s 12 of the Civil Proceedings Evidence Act 25 of 1965. These sections

extend the application of s 198. Whereas s 198 grants a privilege to the recipient of the

communication, the sections have the effect that the spouse who made the communication

can also refuse when appearing as a witness: see Van Niekerk, Van der Merwe and Van Wyk

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