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[2010] ZAWCHC 493
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Filander v S (A430/2010) [2010] ZAWCHC 493 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:A430/2010
DATE:15
OCTOBER 2010
In
the matter between:
BENJAMIN
FILANDER
….................................................................
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
DESAI.
J
:
This
is presently an appeal against the conviction only. It appears that
the appellant was convicted on 2 February 2001 on a charge
of having
contravened section 39(1)(j) of the Arms & Ammunition Act 75 of
1969 (now repealed) and on 12 February 2001 sentenced
to 1 000 hours
of periodical imprisonment as contemplated in section 276(1)(c) of
our Criminal Code. The offence itself was allegedly
committed more
than 12 years ago, that is in 1998. Although the explanation
advanced for the long delay is not entirely satisfactory,
more
especially in that the appellant was a police officer, not hearing
this appeal would amount to a serious miscarriage of
justice in that
counsel, both for the State and the appellant, are
ad
idem
that
the conviction herein cannot be sustained on appeal. That is indeed
so.
The technical defence
raised by the appellant's counsel deals the State's case a fatal
blow, but also on the facts of the matter,
or rather the explanation
advanced by the appellant, a conviction is problematic. I deal with
the latter aspect first.
On
the appellant's version - I may mention that he pleaded guilty and
at that stage was unrepresented - he arrived home with a
friend and
as his wife was not at home, he could not place his firearm in the
safe. Instead he placed it in his cupboard between
his clothes. I
think that was a temporary solution. It subsequently transpired that
his friend saw him doing this and later took
the firearm for his own
purposes. In these circumstances, without any other evidence, the
conclusion that he "failed to
exercise that degree of care
which a reasonable man would exercise to prevent his firearm from
falling into wrong hands",
is not warranted. See in this regard
S
v De Klerk
1992(1)
SACR 181 (W) at 183D-E.
More tellingly, as
appellant's counsel has pointed out, section
39(1)(j) of the
afore-mentioned act was no longer in operation on 14 September 1998,
that is when this offence was committed.
The 1969 act was replaced
by Act 60 of 1988. In this act the earlier section 39(1 )(j) was
replaced by section 23(a), which reads
quite differently. The latter
section only came into operation on 1 July 1994. (See in this regard
Proclamation R74 of 1994 appearing
in Government Gazette 15652 of 22
April 1994.) Quite patently the section under which the appellant
was convicted, cannot on
appeal be replaced with the amended version
as this would amount to an irregular substitution.
In the circumstances the
appeal succeeds and the appellant's conviction and sentence are set
aside.
DESAI,
J
MARAIS,
AJ
:
I agree.
MARAIS,
AJ