n South African Journal of Criminal Justice - Spousal competence and compellability to testify : a reconsideration

Volume 17, Issue 3
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



Under South African law a spouse called as a witness can only be compelled to testify against an accused spouse when the latter is charged with a crime falling in a specific category. In addition, a witness spouse may claim marital privilege when asked to reveal a communication made to him or her by the accused spouse during their marriage. The justification for these rules rests on concerns for the institution of marriage, since marriage is seen as the basis for organisation in society. It is submitted that this justification is not only unfounded, but that the effect and outcome of the current rules leave much to be desired. Moreover, it is submitted that these rules are no longer constitutionally sound, particularly in view of the reality of a modern society that dictates a richer understanding and recognition of other forms of familial relationships. Spouses should be subject to the normal obligations to give evidence, but the court must have a discretionary power to excuse spousal witnesses where the public interest so requires.

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