Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2

Authors: Samantha Goosen and Nicci Whitear-Nel

ISSN: 1996-2118
Affiliations: LLB LLM (UPE) PhD (UKZN), Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg; BA LLB (UN) LLM (UKZN), Senior Lecturer, University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 598 – 616


Although South Africa has not directly grappled with whether to extend the protection of the marital privileges to cohabitant life partners, Canada has. The ‘marital privileges’ refer to spousal testimonial privilege and marital communications privilege, collectively, in this article. In 2015, the Canadian legislature abolished spousal testimonial privilege. The marital communications privilege has been retained, and the Canadian courts have considered whether to extend it to cohabitant life partners or abolish it. To gain perspective on whether the marital privileges in South Africa should be retained but reformed, the authors discuss the position in Canada, a constitutionally comparable democracy. The authors consider the scope and applicability of the marital privileges before and after the 2015 Canadian amendments,1 which abrogated spousal testimonial privilege. The authors discuss the abrogation of spousal testimonial privilege in Canada and consider its relevance in the South African context. Also considered is why the marital communications privilege has been retained. This research suggests that while the central rationale for retaining the marital communications privilege is to foster marital relationships and protect the right to privacy, the rationale of dignity also plays a key role. The authors also consider the decision of the European Court of Human Rights dealing with marital communications privilege in The Netherlands. Finally, it will be submitted that whichever view one takes, the marital privileges in South Africa should not be retained in their current form.