Tuesday, 7 December 2010

RSA: SCA clarify procedure under the Counterfeit Goods Act

The SCA continues to to aid brand owners by clarifying provisions of trade mark legislation in RSA. This time it is the turn of s 5(4) of the Counterfeit Goods Act which sets out the procedure to be followed in the event of a search and seizure without a warrant. Until this decision (Minster of Trade and Industry v E L Enterprises) uncertainty over the procedure had caused advisors to recommend a conservative approach which often meant additional costs and delay. 
A seizure can take place without a warrant in RSA in the event that an inspector has reason to believe that the required warrant will be issued to him if he were to apply for the warrant and the delay that would ensue by first obtaining the warrant would defeat the object or purpose of the entry, search, seizure, removal, detention, collection of evidence and other steps. (Section 5(2))
The Act states further (section 5(4)) that "any acts performed by an inspector by virtue of subsection (2) must be confirmed by a magistrate or a judge of the High Court having jurisdiction in the area where the acts were performed, on the application of the inspector brought within 10 court days of the day on which those acts were performed. . .
"It is the interpretation of this Section 5(4) that was in issue. The appellants launched an application on notice of motion within the required 10 day period but only served that application on the respondents after the expiry of the 10 day period. The argument by the respondents was that having served the application outside the prescribed 10 day period the appellants failed to have ‘brought’ it within 10 court days. The court below upheld this argument."
The court then took a closer look at conflicting wording of different sections: "The wording of s 6 is clearer in excluding the giving of notice to any potential respondent than s 5(4)(a). The warrant in terms of s 6 is issued by a judge or magistrate in chambers on the strength of information on oath or affirmation. Section 5(4)(a) does not refer to the warrant being issued ‘in chambers’, unlike s 6 requires an ‘application’ and does not require that the information be placed before the judge or magistrate on oath or affirmation. The essential question is whether these differences in the wording of the two sections justify an interpretation that s 5(4)(a) prescribes formal application procedure on notice of motion with notice to a respondent."
However, the court held that the slight difference in wording does not result in a substantial difference in procedure and declared that an application in terms of S5(4) of the Counterfeit Goods Act 37 of 1997 is not an application on notice of motion addressed to the court which has to be served on the respondent.
It is interesting that this judgement was pursued despite the fact that the parties had agreed a settlement disposing of the matter in view of the need to seek clarity in the face of conflicting judgements.

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