Goldberg v Director of Public Prosecutions: Western Cape (A446/12) [2013] ZAWCHC 184; 2014 (2) SACR 57 (WCC) (17 December 2013)

Goldberg v Director of Public Prosecutions: Western Cape (A446/12) [2013] ZAWCHC 184; 2014 (2) SACR 57 (WCC) (17 December 2013)

The court held that the appellant was not the owner of the ivory at the time of the alleged offences, nor had he acquired a vested right to ownership. The ivory belonged to his mother, who was the proprietor of the shop. The statutory offences under s 42(1)(b) and s 46(c) require possession and acquisition for one's own benefit, which was not established in the appellant's case. The evidence showed that the appellant acted as an employee and manager, not as the possessor or seller for his own benefit. The state failed to prove beyond reasonable doubt that the appellant acquired or possessed the ivory as required by the Ordinance, or that he had the necessary mens rea. The court further...

Citation
[2013] ZAWCHC 184
Parties
Appellant: Mark Jonathan Goldberg; Respondent: Director of Public Prosecutions: Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 December 2013
Case Number
A446/12
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld. All convictions and sentences set aside.
Judges
Goliath, Le Grange, Rogers
Legal Topics
Nature and Environmental Conservation Ordinance, Search and Seizure, Constitutional Right to Privacy, Mens Rea, Accomplice Liability
Criminal Law Environmental Law Nature and Environmental Conservation Ordinance Search and Seizure Constitutional Right to Privacy Mens Rea Accomplice Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Mark Jonathan Goldberg

Appellant

Director of Public Prosecutions: Western Cape

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the search and seizure of ivory items on 17 August 2009 constituted an unlawful search.
  2. 2 Whether the evidence obtained from the search should have been admitted under s 35(5) of the Constitution.
  3. 3 Whether the ivory items fell within the definition of 'carcase' under the Ordinance.

Ratio Decidendi

The court held that the appellant was not the owner of the ivory at the time of the alleged offences, nor had he acquired a vested right to ownership. The ivory belonged to his mother, who was the proprietor of the shop. The statutory offences under s 42(1)(b) and s 46(c) require possession and acquisition for one's own benefit, which was not established in the appellant's case. The evidence showed that the appellant acted as an employee and manager, not as the possessor or seller for his own benefit. The state failed to prove beyond reasonable doubt that the appellant acquired or possessed the ivory as required by the Ordinance, or that he had the necessary mens rea. The court further...

Court Disposition

Appeal upheld. All convictions and sentences set aside.

Orders

  • The appeal is upheld.
  • The convictions of 29 July 2011 and the sentences of 24 April 2012 are set aside.