Abstract

LAZARUS, Melissa  and  KHAN, Franaaz. An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act. De Jure (Pretoria) [online]. 2021, vol.54, n.1, pp.387-400. ISSN 2225-7160.  http://dx.doi.org/10.17159/2225-7160/2021/v54a23.

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.

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