An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act 51 of 1977.

Abstract

Marital privilege to be or not to be that is the question? The origins of marital privilege dictate that it has been founded on the biblical principles of the sacredness of the union between man and wife. So holy is this union that wives could not betray their husbands as they would be betraying the God-ordained marital union. As a result, wives were not competent or compellable witnesses against their husbands. Over the years the privilege has been developed in English common law where wives were declared to be competent and later non-compellable subject to exception only when an accused spouse has been charged with an offence that falls within a specific category. South Africa has adopted marital privilege from the English common law and has since codified it through the enactment of Section 198 of the Criminal Procedure Act 51 of 1977. According to this section spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged with appears in the categories listed in Section 195 of the Criminal Procedure Act. This study examines the particular sections that pertain to spousal non-compellability. In so doing it highlights the development of the privilege in English common law and South Africa. There are many criticisms that are levied against affording a privilege to a particular class of persons. The most prevailing argument is that the non-compellability exception given to spouses is unconstitutional because it violates the right to equality in terms of section 9 of the constitution. This study examines the merits of this argument and reaches the conclusion that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital status. It is a provision which fails to acknowledge the ever changing needs of a modern society in which we no longer have a one dimensional view of what may constitute a marital relationship. To this end the privilege does not take into account same sex couples, co-habitants and those persons that cannot get married legally. While it may be necessary for spouses and same sex couples to confide in each other without having to be fearful that their communications could be subject to testimony in court, to allow the privilege to remain in existence in its current form is to perpetuate unfair discrimination and inequality within our constitutional democracy. This creates an undesirable situation and therefore demands action in the form of reforming the privilege rather than a total abolishment of the exception. This study seeks to put forth recommendations in this regard by examining the nature, genesis and evolution of spousal competence and non-compellability in South African law.