The Black Flame (part three): Snyman’s Criminal Law

• Author: Mosaka, T.B.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a1
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 1
• Pages: 1-18

The Black Flame (part three):

Snyman’s Criminal Law

TSHEPO BOGOSI MOSAKA*

ABSTRACT

Part three of th is trilogy of paper s (entitled after WEB du Bois’s trilog y

of novels titled the Black Flame) concludes an extraordi narily prolonged

attempt to open a dialogue wit h the esteemed author and revisor of

Snyman’s Criminal Law. The core message of th is trilogy is t hat a small

window into a vibrant indigenous c riminal law schola rship that is not

perpetual ly northbound-gazi ng towards Europe has been opened by the

latest edition of Snyman’s Criminal Law. The r st two parts of th is trilogy

revealed some of the areas in wh ich the next edition, and South A frican

crimina l law scholarship in general, can proceed fur ther into this decolonial

direction. Th is third paper build s on the rst two, which focused ma inly

on the introductor y and historical aspec ts (part one), and the General Part

(part two) respectively, by focusing on the Special Par t of South Afric an

crimina l law. In particular, this paper makes decolon ial interventions in

three areas in wh ich it is argued that the next e dition of the book can

improve: (i)the taxonomic arrangement of offences; (ii) the total exclusion

of African cu stomary law offences from the discussion; and (ii i) the complex

crime of corrupt ion.

1 Introduction

The revisor of the latest edition of Snyman’s Criminal Law has breathed

new life into this work, particu larly by introducing unprecedented

discussions on ‘Customary c riminal law’,1 ‘Criminal law and apartheid’2

and ‘Crimi nal law and the Const itution’.3 These discussions are brief

and do not constitute a complete overhaul of Snyman’s work, but their

signicance lies in the decolonial pos sibilities that they reect for the

future of South Af rican crimin al law. These revisions, along with many

others in the book, are well-cr afted and carefully considered . The

difculty of t his task should not be lost on any reader. Snyman himself

previously remarked that if all that was involved in updating a book

* LLB (Wits) LLM (UC T) PhD (Nottingham), Le cturer in Law, Faculty of Law, Universi ty

of Cape Town.

1 SV Hoctor Snyman’s Criminal Law 7ed (2020) 18–22.

2 Hoctor op cit (n1) 22–23.

3 Hoctor op cit (n1) 23–25.

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(2022) 35 SACJ 1

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was ‘merely to “add” references or discussions of new case law or

new legislation’, the book would snowball in size ‘unt il it becomes

unwieldy’.4 Every insertion of new material, accordi ng to Snyman, has

to be counter-balanced by the removal of existing materi al in order

to keep the size of the text within a man ageable size.5 The revisor,

Shannon Hoctor, has no doubt heeded this advice because the size

of the book has in fact reduced from 554 to 489 pages (excluding

Schedules A and B). The range of commentary in this paper, and this

trilogy of papers more generally, should not be (mis)understood as a

suggestion that the next edition should expand into an ‘unwieldy size’,

which Snyman urges us to avoid. The aim rather is to make a hand ful

of suggestions and comments about how the next edition of the book

can proceed further i nto decolonial directions, while preser ving the

rich legacy of Sny man’s Criminal Law as an emergi ng third tradition

of South African cr iminal law scholarship.6

Notwithstandi ng the assurance that the bulk of the content ‘isver y

much Snyman’s Criminal law’, Hoctor says that the author has

permitted him to ‘ take some liberties’.7 The best example of this in

my view pertains to the changes made to t he discussion about the

defence of necessity and the (still) leading judgment of S v Goliath

1972 (3) SA 1 (A). Snyman made it emphatically clear where he stood

in the sixth edit ion where he said that minority judgment by Wessels

JA was correct.8 T his may well have contributed towards Snyman’s

mischaracterisat ion of the majority (per Rumpff JA) position. First,

Snyman subtitled the section as ‘Act committed in necessit y operates

here as ground excluding culpability and not as ground of jus tication’9

and secondly, the majority judgment is mischaracter ised as having

‘expressly declined to answer [the] question’, without more, as to

whether necessity excludes u nlawful ness or culpabilit y.10 This latter

error has persisted at least since the th ird edition,11 and could not

be sustained in the latest ed ition. Hoctor made the following useful

changes: rst, the title of the sub-se ction was changed to an open

question, and not as an afrm ative proposition favouring the minority

4 CR Snyman Criminal Law 6ed (2014) v.

5 Ibid.

6 The rst two traditions , following the work of FG Gard iner & CWH La nsdown

South African Cri minal Law and Procedure (1917) and JC De Wet & HL Swanepoel

Strafreg (1949), are discussed in deta il in Part One of t his trilogy.

7 Hoctor op cit (n1) v.

8 Snyman op cit (n4) 121.

9 Snyman op cit (n4).

10 Snyman op cit (n4).

11 See CR Snyman Cr iminal Law 3ed (1995) 115; CR Snyman Criminal Law 4ed (2002)

122. Interesti ngly, the rst edition do es not contain thi s error, see CR Snyman

Criminal Law (19 84) 92.

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https://doi.org/10.47348/SACJ/v35/i1a1

© Juta and Company (Pty) Ltd