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

• Author: Mosaka, T.B.
• DOI: https://doi.org/10.47348/SACJ/v34/i3a2
• Published date: 23 February 2022
• Date: 23 February 2022
• Citation: (2021) 34 SACJ 442
• Pages: 442-460

The Black Flame (part two):

Snyman’s Criminal Law

TSHEPO BOGOSI MOSAKA*

ABSTRACT

This is the second of a t rilogy of papers (entitled after WEB du Bois’s trilog y

of novels titled The Black Flam e) reviewing Snyman’s Criminal Law. The

decision to commence working on the review was m ade after encounteri ng

the unprecedented section on A frican customa ry law in the latest ed ition

of the book. This is a m ajor achievement for this work that promise s an

exciting change of direct ion. This paper focuses on four a reas in which

the book can proceed fu rther into thi s new direction. Thes e include:

(i) a comprehensive clarication of the underlying ju risdictional complex ity

within which Sout h African cr iminal law (as inher itor of Roman-Dutch and

English law) currently nds it self; (ii) the comparative nature and source of

Snyman’s preferred arrangement of hi s general principles of crim inal liabilit y;

(iii) the brief account of legal histor y in the introductor y section; and

(iv) the section on African custom ary crim inal law. The overall argument

made is that a northbou nd-gazing crim inal law scholarship ma kes

comparative crimi nal law between South A frica and European jurisdictions

virtual ly impossible. The next edit ion of Snyman’s Criminal Law wil l be

served better by a compar ative focus on African ju risdictions and les s

onEurope.

1 Introduction

Part One of this review sought to contextualise Snyman’s Criminal

Law by locating this tex t as an emerging third tradition of South

African cri minal law alongside the two dominant traditions

grounded in the work of Gardiner and Lansdown1 and De Wet and

* LLB (Wits) LLM (UC T) PhD (Nottingham), Lectu rer in Law, Faculty of Law, University

of Cape Town.

1 FG Gardiner & CW H Lansdown Sou th African Criminal L aw and Procedure

Vols I and II (1917) was published in si x editions, the la st of which appeared i n

1957, until the series was taken over by EM Bur chell & PMA Hunt South African

Criminal Law and Pr ocedure (formerly Gar diner and Lansdow n) (1970). Burchell

& Hunt’s text was initi ally published in t wo volumes, but four additional volume s

later appeared. The l atest successors in t his long tradition a re Jonathan Burchell

(Vol I), John Milton (Vol II) and the cohort of Shan non Hoctor, Michael Cowling

and John Milton (Vol III). Pieterm aritzburg ha s a long and rich histor y of crimin al

law scholarship – see J Burc hell ‘On the shoulders of fat her and son – academic

leadership in the law fac ulty of the Natal Un iversity College (lat er University of

Natal) in Pieterm aritzburg: 1920 to 1982’ in MA Kidd & SV Hocto r (eds) Stella Iuris:

Celebrating 100 Years of Teaching Law in Pie termaritzburg (2010) 32.

https://doi.org/10.47348/SACJ/v34/i3a2

442

(2021) 34 SACJ 442

© Juta and Company (Pty) Ltd

Swanepoel.2 A remarkable feature of Snyman’s Criminal Law is it s

rich comparative law legacy of drawing from these two domi nant

traditions.3 However, one of its core shortcomings is that it contributes

further towards mak ing the already muddy terrain of South African

criminal law even muddier by persisti ng with the perennial

northbound-gaze away from Afr ica and towards Europe. As shown

in Part One, South Africa is littered with this type of comparative

criminal law, and is not in need of any more of it. Snyman’s Criminal

Law is an exciting project because the latest edition shows glimpses

of the charting of a new path th rough the raising of new questions

and the widening of scope in order that new souther n voices4 are

heard.5 Part Two of this review continues from the critique raised

in Part One and proceeds to identif y some of the main areas in

which Snyman’s Criminal L aw could improve by refocusing its

predominant attention away from Europe and more towards Afr ica.

Some of these areas include: the jurisdictional foundations of South

African cri minal law (discussed in Section 2 below); the arrangement

of the General Part (Section 3); legal history (Section 4); and the role

of African customa ry crimi nal law (Section 5).

This type of decolonia lising6 refocusing of South African criminal

law has particular relevance for crim inal justice, more than other

2 JC de Wet & HL Swanepoel Strafreg (1949) was published in four editions unt il 1985.

3 For example, Hoctor leaves Snyman’s advocatio n of a normative conception of

culpability, relying fou ndationally on Ger man crim inal law theor y, virtually in tact

(SV Hoctor Snyman’s Criminal Law 7ed (2020) 131–135), but then gives a brief

rejoinder (at 135–136). See generally, CR Snyma n ‘The normative conce pt of mens

rea: A new development in Germa ny’ (1979) 28 Internat & Comp L Q 211.

4 The ‘southern voices’ trop e is borrowed from the So uthern Criminology movement

that aims to widen t he focus of critica l criminolog y to include the ‘Global Sout h’;

see M Travers ‘The idea of south ern crimi nology’ (2019) 43 Internat J Comp & Appl

Crim Jus 1 (‘Souther n Criminolog y is another term for pos tcolonial crim inology

which was promoted by a few scholar s in the 1980s and 1990 s … The name

coined by Austral ian critical cr iminologist s such as Carri ngton et al (2015) seems

likely to stick’); K Carr ington et al ‘Sout hern crimi nology’ (2016) 56 Brit J Crim’y 1

(‘[W]e outline the cas e for the development of a more tran snational cri minology

that is inclusive of the exp eriences and persp ective of the Global Sout h’);

K Carringt on etal ‘Crimi nologies of the global sout h: Critical ree ctions’ (2019) 27

Critical Crim’y 163. See genera lly, K Carrington et a l (eds ) The Palgrave Handbook

of Criminology and the G lobal South (2018).

5 Hoctor op cit (n3) v.

6 One of the widest de nitions of decolonis ation is given by J Modir i ‘The aporias

of “decolonisation” in the Sout h African ac ademy’ in O Tello & S Motala (eds)

From Ivory Towers to Eb ony Towers: Transforming Humanities Cur ricula in

South Africa, Africa and Afr ican-American Studies (202 0) 157 at 159: ‘[T]he ter m

principally evokes st ruggles to overcome coloni al power and violence; seeking

fundamenta l change through dismantling wh ite supremacy; critically inter rogating,

provincializ ing and de-privi leging Western epistemolog ies and concepts; seeki ng

out alternative and new A frican and Globa l South knowledges and ways of b eing;

The Black Flame (part two): Snyman’s Criminal Law 443

https://doi.org/10.47348/SACJ/v34/i3a2

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