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

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.

Confidentiality and Testimonial Privilege

This chapter describes the complex medicolegal issues surrounding the rules of confidentiality and privilege and their multiple exceptions. It lays out the underpinnings of confidentiality, then addresses its various exceptions, such as waiver, duty to protect third parties, civil commitment, and mandated reporting of child abuse, elder abuse, and intimate-partner violence. Psychotherapist–patient privilege is discussed, first with regard to its origins and then with regard to its exceptions, including various forms of waiver. Practical examples illustrate these concepts for the reader to make it easier to understand these ubiquitous, but at times perplexing, concepts and to illustrate the nuances of various aspects of the law. Practitioners should note that there is considerable overlap between confidentiality and testimonial privilege, and the division of this chapter into two sections creates, in some ways, an artificial divide between two closely related concepts.

ICRC Privilege in Canada

This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

Freedom of Expression and International Criminal Law: An Analysis of The Decision to Create a Testimonial Privilege for Journalists

In a recent decision, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia recognised a qualified privilege for war correspondents in setting out a test that the party requesting its testimony must overcome in order for the Trial Chamber to issue a subpoena. This article examines the decision and the test by comparing it to the approaches of other jurisdictions and any general principles of law that arise therefrom. It also considers whether the decision is consistent with the internationally recognised rights of freedom of expression and to a fair trial. It argues that the international tribunals should take all of these sources of law into account in formulating rules of procedure and evidence, but should also give particular regard to the purposes of international criminal justice, which relate to furthering the establishment of peace.In this context it is argued that the interests of the international criminal justice system are best served by the creation of a distinct procedural framework that contains clear and principled rules. The Appeals Chamber's formulation of a journalistic privilege not only advances this goal, but also recognises that the ability of war correspondents to report on conflicts is vitally important to the international community, including the international courts themselves. The potential impact on this ability arising from the work of the courts necessitates special consideration and a degree of protection for this group.