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

by | Oct 9, 2022 | SACJ, SACJ V35 I1 2022

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

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (UCT) PhD (Nottingham), Lecturer in Law, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 35 Issue 1, p. 1 – 18
https://doi.org/10.47348/SACJ/v35/i1a1

Abstract

Part three of this trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled the Black Flame) concludes an extraordinarily prolonged attempt to open a dialogue with the esteemed author and revisor of Snyman’s Criminal Law. The core message of this trilogy is that a small window into a vibrant indigenous criminal law scholarship that is not perpetually northbound-gazing towards Europe has been opened by the latest edition of Snyman’s Criminal Law. The first two parts of this trilogy revealed some of the areas in which the next edition, and South African criminal law scholarship in general, can proceed further into this decolonial direction. This third paper builds on the first two, which focused mainly on the introductory and historical aspects (part one), and the General Part (part two) respectively, by focusing on the Special Part of South African criminal law. In particular, this paper makes decolonial interventions in three areas in which it is argued that the next edition of the book can improve: (i) the taxonomic arrangement of offences; (ii) the total exclusion of African customary law offences from the discussion; and (iii) the complex crime of corruption.

The importance of explicit reasons when overturning a conviction: Non-compliance with the competency test or the requirement to admonish complainants

by | Oct 9, 2022 | SACJ, SACJ V35 I1 2022

The importance of explicit reasons when overturning a conviction: Non-compliance with the competency test or the requirement to admonish complainants

Author: Nondumiso Phenyane

ISSN: 1996-2118
Affiliations: B Soc Sci LLB LLM (UCT), Lecturer, Departments of Public and Mercantile Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 35 Issue 1, p. 19 – 33
https://doi.org/10.47348/SACJ/v35/i1a2

Abstract

There are numerous cases in which magistrates failed to properly administer the competency test or to admonish complainants in terms of s 164(1) of the Criminal Procedure Act 51 of 1977. In many of these cases, the magistrates nonetheless found the accused guilty based on the inadmissible evidence of the complainants. On review or appeal, however, the higher courts set the decisions of the magistrates aside because the magistrates’ decisions were based on the unreliable evidence of the complainants. While the rulings of the higher courts were legally sound, if not explained explicitly and thoroughly, they may appear unjust, clinical, harsh, inconsiderate, or even nonsensical. Such matters involve the fundamental rights of complainants and accused persons. They also result in severe consequences for complainants and accused persons, and they involve vulnerable groups such as children and mentally-ill individuals. It is therefore important that the higher courts reviewing the procedural errors of magistrates provide explicit and thorough explanations for their findings. To avoid perceptions that the decisions of the higher courts are unjust, the rulings of the courts should expressly acknowledge and address the unfortunate consequences suffered by both complainants and accused persons when a magistrate’s conviction is unsustainable because it was based on evidence that was not properly admitted. Acknowledging and addressing the injustices may help courts provide reasons for their decisions that go beyond merely stating that the complainants’ evidence is excluded because it is unreliable. Explicit reasons in such instances would go a long way in engendering and maintaining public confidence in the judicial system and enhancing public scrutiny of the current legal position.

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (1)

by | Oct 9, 2022 | SACJ, SACJ V35 I1 2022

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (1)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 35 Issue 1, p. 34 – 57
https://doi.org/10.47348/SACJ/v35/i1a3

Abstract

The fact that the police and other security officers are authorised to carry firearms in the performance of their duties does not mean that they can lawfully use them at their whim or caprice. This is especially so if it be said that the objects of the police service are, inter alia, to protect the safety of its members and safeguard the public from harm. Although the primary duty of the police officer is to arrest and bring suspects to justice, however, the question of the wrongful use of their official firearms often comes up for determination. For instance, it is the law that the police can use reasonable force to arrest a suspect who resists arrest or who is violent. The question whether the force used was excessive in the circumstances a police officer finds him/herself is determinative as to whether the state will be held liable for the force used. In determining liability as well as the quantum of damages in these circumstances, one finds that all police shooting cases are not always connected with arrests. Sometimes a police officer shoots at a so-called suspect for no apparent reason, and even where the officer suspects that an offence has been committed, such suspicion may not be reasonable, or sufficient to justify the shooting. This enquiry examines the quantum of damages that have been awarded in South Africa in comparative perspective with the experiences of Lesotho, Malawi, Namibia and Swaziland/Eswatini in instances of unlawful shooting by police officers and further comparative awards made in respect of shootings by other security personnel. It is clear from this study that, owing essentially to the seriousness of the bodily injuries resulting from such shootings, the courts tend to make heavier awards in the circumstances of such shootings than in the normal or straight-forward wrongful arrest and detention cases.