By Delano Abdoll

While the privilege against disclosing marital communications has long been a topic of debate, the question that has yet to be answered is whether such a privilege amounts to unfair discrimination on the ground of marital status? In a time where the public outcry for criminal courts to establish the truth has become increasingly relevant some issues directly relevant to the question at hand are important to highlight in this regard.

First, in terms of s 198 of the Criminal Procedure Act 51 of 1977 (the CPA), spouses are the only category of witness deserving of a right to refuse to disclose both admissible and even highly relevant evidence when testifying before a court of law . Secondly, given that only married persons can invoke the right to marital privilege, s 198 of the CPA clearly fails to accommodate persons who either reject the institution of marriage or cannot enter into a legally recognised marriage for numerous reasons. One would argue that even these individuals still desire an equivalent legal status in respect of their communications made between each other. Thirdly, while marital communications are regarded as privileged, s 14(d) of the Constitution provides that every person has a right against the infringement of his or her private communications.

When applying s 198 of the CPA to the unfair discrimination test as set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC), the findings thereof can also be summarised as follows:

• In terms of the first stage of the inquiry the section makes a differentiation between people who are married and people who are not. However, given that the differentiation is one that is based on a rational governmental objective, the section does not necessarily violate s 9(1) of the Constitution.
• In terms of the second stage of the inquiry, it would appear that the differentiation created by s 198 is based on the ground of marital status. As such, discrimination is established. Moreover, given that marital status also qualifies as a specified ground in terms of s 9(3) of the Constitution the effect thereof is arguably that –

– unfairness is presumed; and

– a prima facie violation of ss 9(3) and 9(4) of the Constitution is present.

• In terms of the third stage of the inquiry, if one agrees that the prima facie unfair discrimination of s 198 also lacks any significant ground of justification in respect of s 36 of the Constitution, it may be accepted that the section should be declared as unconstitutional. In this context, the Constitutional Court (CC) in Ex Parte Chairperson of the Constitutional Assembly: In re Certificate of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at 806 also highlights the point that unlike the right to equality, neither the right to marry nor the right to family life is regarded as constitutionally protected rights in terms of the Bill of Rights. It, therefore, follows that, when comparing the right to equality to that of the exclusive right to marital privilege, s 9 of the Constitution clearly dictates that a spousal communication privilege is unconstitutional.

Assuming that these findings are correct not only is it arguable that s 198 of the CPA is inconsistent with the right to equality, but it would also appear that the existence of marital privilege thus becomes problematic. One suggestion that has been raised before is the call for a complete abolition of marital privilege. However, with no real changes being made up until now, I am of the opinion that if the Constitution is to be taken seriously in this regard, it is imperative that such a matter be dealt with without further delay.

Delano Abdoll is a final year LLB student at the University of Pretoria under the supervision of Dr LG Curlewis.

This article was first published in De Rebus in 2017 (Sept) DR 23.