Two related cases were decided at the Western Cape High Court shortly before Christmas last year. Both were brought by a Mr Goldberg.
In 2009, Mr Goldberg was taken by surprise by police officers at his family curio shop in Three Anchor Bay, and found in possession of 1,5 tons of ivory and ivory trinkets, for which he could not produce the proper documentation. He was charged with several counts of breaking the laws concerning possession of animal parts. Two weeks later, his bedridden mother (who had apparently started dealing in ivory in the 1950s) passed away.
In 2011, Mr Goldberg was convicted on several counts and sentenced to spend 7 years in prison (with 2 years being suspended).
In the first case, his legal team argued that the law under which he was charged was vague and over-broad, and thus unconstitutional. The Court did not agree, and refused his application to have the law declared unconstitutional.
In the second case, Mr Goldberg appealed against his conviction and sentence, arguing that he should not have been found guilty, but that even if he were guilty then the sentence to imprisonment was too harsh. The Court’s judgment focused on the conviction itself. Mr Goldberg produced documentation showing that his bedridden mother, then late, was the legal owner of the business which sold the ivory. While he was found in the shop, apparently in control of the business, the Court found that the evidence did not prove that he possessed the ivory for his own benefit.
As such, the Court took the view that Mr Goldberg had not committed any offence, and his deceased mother was the true culprit. At most, Mr Goldberg was an accessory to her crimes. However, an accessory had to be more than merely negligent – an accessory had to knowingly be an accessory to unlawful activity. The Court found that such knowledge on Mr Goldberg’s part had not been proved.
In the result, Mr Goldberg’s conviction and sentence were set aside.
Under his mother’s will, he was to inherit the curio shop. One wonders whether the shop still openly sells ivory, and whether with the necessary documentation in place.