Abstract
Marital privilege is founded on the biblical principles of the union between man and wife. Thus wives were not competent or compellable witnesses against their husbands. Over the years the privilege developed in English common law. South Africa codified the privilege through Section 198 of the Criminal Procedure Act 51 of 1977 which states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the Act. There are many criticisms against affording a privilege to a particular class of persons - notably that the non-compellability exception given to spouses is unconstitutional as it violates the right to equality in terms of section 9 of the Constitution. Recent media coverage at the Zondo Commission highlighted this conundrum when the ex-minister's spouse was asked to testify. This article examines the merits of the unconstitutionality argument and concludes that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital privilege. Finally, recommendations are proposed in this regard which examine the nature and evolution of spousal competence and non-compellability in South African law.
Highlights
Marital privilege or the non-compellability exception afforded to spouses finds expression in the ambit of South African common law and in section 198 of the Criminal Procedure Act.[1]
Husbands and wives were regarded as one.[16]. This formed the basic premise of the common law and reinforced the patriarchal notion that underpinned the values of society – that a husband was the only legally recognised person in the marital union, and marital privilege would practically serve only to protect a husband who was charged with an offence:17It is this theory that formed the basis of marital privilege that persisted for centuries.[18]
The Constitutional Court held that the provisions of the Aliens Control Act,[35] which granted spouses of South African citizens a right to an immigration permit amounted to unfair discrimination on the basis of marital status
Summary
Marital privilege or the non-compellability exception afforded to spouses finds expression in the ambit of South African common law and in section 198 of the Criminal Procedure Act (hereinafter the CPA).[1]. 388 2021 De Jure Law Journal who are afforded a privilege that permits them to refuse to disclose to the court evidence that is both admissible and highly relevant in criminal proceedings This aspect of spousal non-compellability in South African law was recently highlighted during Judicial Commission of inquiry into state capture otherwise known as the Zondo Commission[3] when the ExMinister of Finance Malusi Gigabas’ legal representatives attempted to utilise marital privilege to prevent his estranged wife from testifying about communications shared between them during the course of their marriage. The questions to be considered in light of the above arguments are whether the right to marital privilege amounts to unfair discrimination and by its continuance in our law does it perpetuate the privilege outweighing the right to equality thereby proving that the interest in protecting the marital union is more relevant than the interests of justice
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