Introduction

What happens when a spouse discloses to the other that they have committed a crime? Does the spouse have an obligation in terms of the law to say something? Can that spouse be forced by the court of law to testify? Does the law offer protection to the spouses?

What is marital privilege?

It is the protection offered to spouses for communication that was privately disclosed during the course of their marriage. Either spouse may invoke the privilege and this can prevent the one spouse from testifying against the other about their private marital communications in a civil or criminal matter. 

In terms of the Criminal Procedure Act 51 of 1977 (CPA), every person not expressly excluded from the CPA shall be competent and compellable to give evidence in criminal proceedings. Section 198 of the CPA provides that, spouses shall not be compelled to disclose any communications made to each other during the course of the marriage.

Section 10 and 12 of the Civil Proceedings Evidence Act 25 of 1965 (CPEA) provides that no spouse shall be compelled to disclose any communication made during the marriage and no such person shall be compelled to answer any questions or give any evidence of the spouse if under examination as a witness. This means that a spouse cannot be subpoenaed to testify against their spouse.In law this is known as marital privilege.

Even if the evidence is admissible in court and is highly relevant in the criminal proceedings, spouses have the right to refuse to disclose the evidence when testifying in court.

Can I testify against my spouse?

Should a person wish to testify against their spouse they are able to do so, the marital privilege provision has been put in place to ensure that spouses are not forced to do so. In South Africa unlike other jurisdictions, a spouse that is being testified against cannot bar the testifying spouse against them.

Are there any limitations on marital privilege?

Although spousal privilege is guaranteed, it does not apply in all circumstances. Section 195 of the Criminal Procedure Act provides that there are certain instances in which a spouse cannot rely on marital privilege. The section provides for the following exceptions:

(a) Any offence committed against the person of either of them or of a child of either of them or of a child that is in the care of either of them;

(b) Any offence under Chapter 8 of the Child Care Act, committed in respect of any child of either of them;

(c) Any contravention of any provision of section 31 (1) of the Maintenance Act, or of such provision as applied by any other law;

(d) Bigamy;

(e) Incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act;

(f) Abduction;

(g) Any contravention of any provision of section 2, 8, 10, 12, 12A, 17 or 20 of the Sexual Offences Act,

(gA) Any contravention of any provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,

(h) Perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection;

(i) The statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h).

Who can rely on the marital privilege clause?

Only married persons who have concluded marriages that are recognised by South African law have been given the right to invoke marital privilege in terms of section 198 of the CPA. The provision also applies to persons that are divorced, however this is only for matters communicated during the course of the marriage; anything communicated after the dissolution of the marriage is not protected by marital privilege.

It fails to provide for individuals in a lifelong relationship or those whose marriage is not recognised by South African laws.

This may amount to unfair discrimination as everyone has the right to equality. However, as it stands, only individuals who are in a legally recognised marriage can invoke the right not to testify against their spouse.