The biblical concept of marriage privilege is based on the union of husband and wife. Therefore, wives could not be compelled to testify against their husbands. Throughout history, common law developed this privilege. In South Africa, the privilege was codified in section 198 of the Criminal Procedure Act 51 of 1977, which states that spouses who are accused of a crime cannot be forced to testify against their spouses unless the crime that they are accused of falls into one of the categories in section 195 of the Act.
What is marital privilege?
Communication between spouses that was privately disclosed in the course of a marriage is protected by marriage confidentiality. The privilege is invoked by either spouse and can prevent either of them from testifying against the other in legal or criminal proceedings based on their private marital communications.
In accordance with the Criminal Procedure Act 51 of 1977 (CPA), every person, unless specifically excluded, shall be competent and liable to testify in criminal proceedings. A spouse is not required to divulge any communications made during a marriage under Section 198 of the CPA.
Civil Proceedings Evidence Act 25 of 1965 (CPEA) provides that no spouse may be compelled to disclose any communication made during the marriage, and that any spouse under examination as a witness may not be forced to answer questions. In law, this is known as marital privilege, which prohibits spouses from being subpoenaed to testify against their spouse.
When testifying in court, spouses still have the right to refuse to disclose evidence, even if it is admissible in court and highly relevant to the criminal proceedings.
Is my spouse able to testify against me?
In the event that a person would like to testify against their spouse, they are able to do so. The marital privilege provision prevents spouses from being forced to testify against their spouse. As opposed to other jurisdictions, in South Africa a spouse who is being testified against cannot receive a protective order against the testifying spouse.
Does the marital privilege clause apply to everyone?
Section 198 of the CPA grants a right to invoke marital privilege only to married persons who have concluded marriages recognized by South African law. In addition, the marital privilege provision applies to divorced persons, however it only applies to communication that occurred during the marriage; any communication that took place after the dissolution of the marriage is not protected.
There is no provision for individuals in lifelong relationships or whose marriages are not recognized by South African law.
Due to everyone having a right to equality, this may amount to unfair discrimination. To date, however, only people in a legally recognized marriage are exempt from testifying against their spouse.
(This article is provided for informational purposes only and not to provide legal advice. For more information on the topic, please contact our offices.)
