SPOUSE TO BE INFORMED OF RIGHT NOT TO TESTIFY

S v MGCWABE 2015 (2) SACR 517 (ECG)

Evidence — Witnesses — Competence and compellability of — Of spouse or former spouse of accused — Accused’s wife testifying that she had not been told that she could elect not to testify and had agreed to testify because she was already at court — Witness should be informed of rights before testifying and this should be placed on record — Fact that relationship between spouses ‘severely damaged’ not a ground justifying wife being called as prosecution witness without being informed of rights — Conviction set aside.

The appellant was a court clerk employed at a magistrates’ court, who was convicted in that court of the theft of a police docket and the attempt to obstruct the course of justice by stealing the docket. He was sentenced to four years’ imprisonment on each count, the sentences to be served concurrently. The third state witness at the trial was the appellant’s estranged wife, who was not living with him at the time. She testified that she had been away for the weekend and was not aware that the appellant had slept at her home. On that Monday the appellant went to his wife and asked her for his bag, which was inside her house. He made repeated attempts to get the bag from her but she was unwilling to hand it over. The appellant even resorted to calling the police to accompany him in his quest to get the bag. After the appellant eventually left without having succeeded in his quest, his wife then called the police and handed over the bag to them. It contained the police docket. After testifying in chief, she stated undercross-examination that she was still married to the appellant and that it had not been explained to her that she did not have to come to court, but that she had decided that since she was already there, she might just as well testify. On appeal it was argued that the magistrate had committed a serious misdirection in failing to properly investigate the circumstances under which the appellant’s wife testified and, at the very least, by permitting her to continue giving evidence after she had already indicated that she would not have testified, had she been aware that she was not obliged to do so.
Held, that the apparent view of the magistrate that because the marriage relationship between the appellant and his wife was ‘severely damaged’, she could be called to testify without being informed of her right to refuse to give evidence, was clearly incorrect. Section 195(1) of the CPA did not provide that a spouse would not be compellable to give evidence only if this H were necessary to preserve the marriage relationship, but it afforded that spouse an absolute right to make an election not to testify.
Held, further, that it did not assist the state that the appellant’s wife elected to continue with her evidence after she had been made aware of the provisions of s 195(1). The decision to do so was taken because she was already in court and was not a decision taken after a proper consideration, before she was called as a witness. Where a witness was competent but not compellable, such witness should be informed by the prosecutor of his or her rights prior to them being called and this should also be placed on record at the outset of the proceedings. In any event the presiding judicial officer should ascertain whether or not that witness was aware of the provisions of s 195(1) and if this were only brought to the attention of the witness for the first time at that stage, the judicial officer should afford the witness an opportunity to come to a decision after proper consideration.
Held, further, that, as the magistrate had relied on the appellant’s wife’s evidence and the appellant had been cross-examined on his wife’s evidence, in all the circumstances the convictions of the appellant could not be allowed to stand and had to be set aside.

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