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: 

and

JUDGMENT

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.

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