On Monday night, 26 April 2021, Norma Mngoma appeared to argue against testifying at the Zondo Commission. Her reasoning to the commission that her marital status somehow precluded her from testifying against her husband (Malusi Gigaba) was dismissed by commission chair Deputy Chief Justice Raymond Zondo.
Spousal privilege has been recognized throughout history. It arises from the notion that married spouses are one entity and so are not competent to testify against themselves through their other (if not better) half.
One spouse cannot be compelled to give testimony against his or her spouse who is a defendant in a criminal trial. The accused spouse may claim the privilege or the other spouse may claim it on behalf of the accused spouse. The spouses must be married at the time that the privilege is asserted; so an ex-spouse can be compelled to give testimony about a defendant to whom he or she was previously, but is no longer, married.
Under South African law a spouse called as a witness can only be compellable to testify against an accused spouse when the latter is charged with a crime falling in a specific category. These crimes are specifically mentioned in the Criminal Procedure Act No. 51 of 1977 (“the Act”), section 195, which includes but is not limited to bigamy, abduction, incest, and an offence committed by one spouse against the other or either spouse against a child of either of them or a child that is in the care of either of them. In civil matters, a spouse is both a competent and compellable witness for and against the party concerned.
In light of the above, the Zondo Commission may well have made the right call.
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Written by Meegan Reddy – Candidate Attorney.
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