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[2014] ZAGPJHC 362
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Keith Ho T/A Betxchange and Another v Minister of Police and Others (2014/20483) [2014] ZAGPJHC 362; [2015] 1 All SA 681 (GJ); 2015 (2) SACR 147 (GJ) (24 November 2014)
REPUBLIC
OF
SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2014/20483
DATE:
24 NOVEMBER 2014
In
the matter between:
KEITH
HO T/A
BETXCHANGE
....................................................
First
Applicant
PLAYBET
(PTY)
LTD
................................................................
Second
Applicant
And
THE
MINISTER OF
POLICE
...................................................
First
Respondent
THE
MINISTER OF TRADE AND INDUSTRY
....................
Second
Respondent
JASPER
NIGHTINGALE N.O
...............................................
Third
Respondent
P
C
KUBEKA
.......................................................................
Fourth
Respondent
M
V
MAKHANYA
..................................................................
Fifth
Respondent
M
V N P
MASUKU
................................................................
Sixth
Respondent
D
S
MAKHASI
..................................................................
Seventh
Respondent
M
V
HLONGWANE
.............................................................
Eighth
Respondent
D
M KISCH INCORPORATED
............................................
Ninth
Respondent
GERALD
BOURNE
..............................................................
Tenth
Respondent
FARREL
DUANE FRANK
................................................
Eleventh
Respondent
JUDGMENT
Headnote
Rights
to privacy of a juristic person by appropriation of private
information– violation of section 14 of the Constitution
-
private information of a juristic person distinguished from personal
information of a natural person
Violation
of privacy by police search and photographing of business activities
and recording of private information – lawfulness
of
appropriation of private information dependent on validity of a
warrant issued by a magistrate under the Counterfeit Goods
act 37 of
1997
Applicant
applying for access to the documents put before the magistrate to
issue warrant – applicant intent on adducing the
documents in
review application to set aside the warrant - police refusing to
disclose – averring that applicant obliged
to apply ito rule 53
Resistance
to disclosure misconceived – a person who seeks to challenge
the validity of a warrant possessed of a substantive
right to access
to such documents – rule 53 channel for disclosure is optional
Where
a decision maker has to compose a ‘record’ to justify a
decision, rule 53 is the ideal channel, but where
the document
sought already is in existence and complete and is physically
available to hand over, a rule 6 application is appropriate
at
applicant’s election- not obligatory for applicant to use rule
35 (14)
Resistance
to disclosure on basis that if and when prosecuted the information
could be accessed then– wholly misconceived
notion- failure to
appreciate that applicant has a substantive right to the information
immediately
Interim
interdict, pending the review to decide the validity or otherwise of
the warrant, to prevent access to private information
which had been
appropriated by police – real threat of harm if trade rival
used it to procure a breach of contract with a
supplier of the
applicant which breach could materially disturb the applicant’s
business activities – elements for
interdict established –
relief granted
Order sought to
reveal who had been given access to the private information –
relief justified in order to take steps to protect
dissemination of
private information to the prejudice of applicant
SUTHERLAND
J:
Introduction
[1]
The applicants, two related companies, were subjected to a search by
the police (the first and third to eighth respondents)
of its
business operations pursuant to a warrant issued by a magistrate
under the provisions of the
Counterfeit
Goods Act 37 of 1997 (CGA).
[2]
The applicants are bookmakers and publicans. The police entered their
premises and took photographs of their business activities
and noted
the serial numbers of four DSTV decoders used by the applicants to
screen horse races to the public who frequent their
pubs and place
bets. No property of the applicants was removed. However, the
police conduct is, if not lawfully authorised,
a violation of their
right to privacy and a misappropriation of their private
information.
[1]
[3]
The applicants seek to set aside the warrant, and procure ancillary
relief thereto, calculated to protect the integrity and
confidentiality of their private information. In addition to the
self- evident violation of privacy by means of the search, as
is
addressed more fully hereafter, the applicants articulate a fear that
by obtaining the serial numbers of their DSTV decoders,
a trade
rival, Tellytrack, whose complaint triggered the search, is able to
approach Mnet and, because it can identify the decoders
with the
applicants as users, suborn a breach of the contractual relationship
between the applicants and Mnet by cutting off their
access to horse
racing videos, and thereby prejudice their business operations.
[4]
It has chosen to approach the court using the double-barrelled form
of relief in two parts, A and B. The explanation for that
is
historical; the relief in Part A began life as an urgent application,
but upon a court failing to appreciate any urgency in
the relief
sought, the matter has crept back onto the ordinary opposed motion
roll for adjudication.
[5] This application
is for the part A relief. The prayers consist of four items of
de
facto
final relief and one item of interim relief. The prayers
sought in Part A are these:
“
2.
Ordering the Respondents to deliver a copy of the complaint
affidavits/statements, together with annexures (“the
documents”)
used in support of the applications brought, on or
about the 27
th
May 2014, for the following search and seizure warrants:-
2.1
a search warrant issued by the Third
Respondent on or about the 27
th
May 2014 in respect of premises described as BetXchange, Cnr. Main &
Geranium Streets, Rosettenville (“the BetXchange
Premises”),
a copy of which is annexed to the founding affidavit (“the
BetXchange Warrant”).
2.2
a search warrant issued by the Third
Respondent on or about the 27
th
May 2014 in respect of premises described as Playbet, 546 Jues
Street, Malvern, Johannesburg (“the Playbet Premises”),
a
copy of which is annexed to the founding affidavit (“the
Playbet Warrant”).(the aforementioned warrants are referred
to
as “the search warrants”);
3.
Ordering the First, Second and Fourth
Respondents forthwith and within 24 hours:-
3.1.
to furnish the Applicants with copies of all photographic images
created by them in the course of the execution of the search
warrants; and
3.2
to deliver up all records of the
identification numbers of the DSTV decoders and/or smart cards in
whatever form such records have
been kept.
4.
Granting the Applicants leave to supplement
their papers upon receipt of the affidavits referred to in prayer 3
above, for the purposes
of the relief sought in Part B of this notice
of motion.
5.
Pending the determination of the relief sought in Part B:-
5.1
Ordering that all items seized pursuant to
the search warrants, including all information, documents, data and
photographic images,
be sealed in the possession of the Registrar of
this Honourable Court, alternatively an independent and trustworthy
stakeholder
as agreed between the parties;
5.2
Interdicting the Respondents, including any
officers, employees or agents of the Respondents from handling,
dealing with, processing,
examining, interpreting or in any other way
having access to the seized items, including all information,
documents, data and photographic
images;
5.3
Ordering the Respondents to disclose the
names of all parties who have been orally advised as to the contents
of the inventory forms
and/or are in possession of the inventory
forms and/or any of the photographic images.”
[6]
The relief in part A is said by the applicant to be “process in
aid’ to enable it to prosecute a case for the relief
prayed for
in Part B of the proceedings. It is apparent that, save for the
interim orders in prayer 5.1 and 5.2, the rest of the
prayers in Part
A are final in effect. Prayer 4, about supplementation of the
papers is ancillary to other relief and is
uncontroversial; indeed,
it is probably superfluous, and warrants no further attention.
[7] The relief in
Part B, which part A anticipates, is formulated as a review, thus:
“…
.
an order will be sought in the following terms:-
(a)
setting aside, alternatively reviewing and
setting aside the BetXchange Warrant and the Playbet Warrant as
described in the founding
affidavit; and
(b)
setting aside, alternatively reviewing and
setting aside the execution of the BetXchange Warrant and the
Playbet Warrant as
described in the founding affidavit; and
(c)
directing the Respondents to forthwith
return all original documents and copies thereof including
information, data and photographic
images, and documents created
during the course thereof, arising from the search warrants and the
execution thereof; and
(d)
ordering the Respondents to forthwith
destroy all copies of original documents including information,
data and photographic
images, and documents created during the course
thereof, arising from the search warrants and the execution thereof;
and
(e)
ordering the Respondents to pay the costs
of this application, jointly and severally, the one paying the other
to be absolved; and
granting the Applicants such further and/or
alternative relief.
[8]
A brief account of the context is useful to understand how this
affair came to pass. The applicants, as alluded to, are bookmakers
and publicans. They use the DSTV channel 239 to screen horse races to
their clientele. Tellytrack,
[2]
the
12th respondent films the horse races and streams the images to Mnet
who in turn make the images available for public viewing
on the DSTV
network. Until recently this channel was available to home viewers
and to businesses. Tellytrack changed its
conditions of supply
to Mnet to confine open viewing to the home market and to require
businesses to pay for a licence to screen
the races to their
customers in the pubs and clubs.
[9]
This move enraged the bookmaker publicans and litigation about the
matter ensued. At present, the applicant is amongst a number
of
disgruntled businesses at odds with Tellytrack and litigation between
the adversaries is work in progress.
[10]
Tellytrack’s point of view is that the applicant has no lawful
right to facilitate a screening of its images to a business
clientele, which images, it alleges, are subject to copyright
protection, unless the applicant procures a licence from Tellytrack.
Against this still unfolding saga, Tellytrack complained to the
police about the applicant’s screening of these images, and
that complaint led to the warrant being authorised.
[11]
The merits of the accusations by Tellytrack against the applicants
are outside the compass of this case.
[12]
Mr Friedman, on behalf of Tellytrack, argues that the final relief
sought is in the form of a mandamus. I agree. It is uncontroversial
that relief which is final in effect must be substantiated by a clear
right. The interim relief must be assessed in accordance
with the
usual interdictory relief criteria; ie a prima facie right albeit
open to some doubt, imminent harm to such right, no
suitable
alternative remedy, and a balance of convenience in the applicants’
favour.
[3]
[13]
The case for the various prayers and the controversy which attaches
to each requires distinctive treatment.
Prayer
2: The demand to disclose ‘founding’ documents for the
procurement of the warrant.
The
narrative
[14]
The warrants were obtained from a magistrate,
ex
parte
,
a procedural step which was in accordance with the enabling statute,
the CGA.
[4]
The act of
authorisation of a warrant is a judicial act performed by a Judge or
Magistrate.
[5]
The applicant has
articulated several substantive complaints about the validity and
propriety of the warrants. Among them is the
argument that on the
face of the warrant, action was authorised beyond the ambit of the
CGA. Section 2 of the CGA contemplates
the protection of traders from
the manufacture, production or duplication of goods that imitate
authentic goods.
[6]
[15]
It is plain that the subject matter of the protections is ‘goods’
which the definition of ‘counterfeiting’
and of
‘counterfeit goods’ makes clear are ‘things’
capable of manufacture or replication
[7]
.
Goods could conceivably be property of an intellectual, rather than a
tangible, nature. Theft of a person’s ‘goods’
is
however not a matter covered by the CGA. Section 5 provides for a
warrant to enter, search, inspect and seize.
[8]
[16]
The warrants that were authorised contain statements that
‘
information
’
was placed before a magistrate that there were reasonable grounds to
believe that the applicant was dealing in counterfeit
goods and
authorised the police to enter inspect and search for evidence of
‘
acts of copyright infringement’
.
To this end the police were further authorised to take photographs
‘….
depicting the
unauthorised screening and display to the public, ie customers and
potential customers of
[the applicant]
of the Tellytrack telecast, as well as
photographs of the dstv decoders and smartcard used to facilitate the
screening and
display of the Tellytrack telecast, including the
recordal of the serial numbers of the aforementioned decoder and
smartcard
.’
[17]
The application and the supporting affidavits, if any, put before the
magistrate to procure the warrants are wanted by the
applicants to
give flesh to their further affidavit which is to be placed before
the court to justify the relief sought in part
B by, self-evidently,
demonstrating the alleged disconnection between the provisions of the
CGA and the information placed before
the magistrate to apply for the
warrant. Despite request the respondents refused.
The
respondents’ First basis for refusal
[18]
The refusal is qualified. The argument runs that the applicant is
entitled to these documents, but not yet. The refusal is
therefore
merely dilatory. The respondents, in effect, say that the applicant’s
approach to the court in regard to prayer
2 is the wrong way to
compel disclosure and until they are compelled in the appropriate
form the respondents refuse disclosure.
[19]
What, according to the respondents, is the proper way? It is
argued that the applicant will be entitled to the documents
in terms
of rule 53 of the uniform rules,
[9]
upon the bringing a review application invoking that rule to set
aside the magistrate’s decision to issue the warrants. The
application has not invoked rule 53.
[20]
Moreover it is trite that a litigant aggrieved by an adverse decision
made by an official exercising a public power is not
obliged to use a
rule 53 procedure to review any decision susceptible to review.
[10]
The aggrieved litigant may proceed, more simply, under rule 6.
[11]
[21]
Despite that consideration, the thrust of the respondents’
argument is, therefore, that Rule 53 is a suitable alternative
to the
relief sought and for that reason the applicant has not cleared the
threshold of an absence of an alternative remedy as
contemplated by
interdictory relief. Mr Vetten points to the absence of a substantive
difference between the present application
which will have the same
outcome as a rule 53 application, and the more glaring absence of any
policy reason why a litigant ought
to be pressed into a rule 53
application to achieve the identical outcome. I agree. In my view,
this is a classic case of a distinction
without a difference.
[22]
Moreover, if, as it seems to be conceded that the applicants have a
right to the documents and the only real dispute is the
procedure
by which they must
disgorged,
it follows in my view that unless the procedure adopted by the
applicant can be faulted as being inimical to orderly
litigation no
reason exists to proscribe it. In particular, it seems to me that a
rule 53 approach is apt when the decision maker
must go to the rouble
to compose a ‘record’ but a rule 6 application is
appropriate when the document sought is unequivocally
described and
is already in existence, on the shelf, so to speak, awaiting only the
photocopier’s caress, to be produced
and handed over. This case
is an example of exactly that.
[23]
It is true that a litigant, having applied in terms of rule 6
to review a decision could avail itself of the provisions
of rule 35
(12) read with Rule 35(13)
[12]
to call for discovery of documents from an adversary as being
relevant to an issue. The documents sought here could have been
procured in that fashion. However, that is a cumbersome procedure,
requiring a court to consent to its use before demanding delivery
of
the documents in question and most unsuitable when a degree of
expedition no less, urgency is present.
[13]
Moreover,
Rule 53 and rules 35(12) and (13) are mere procedural devices, not
the fount of any rights.
Respondents
second basis for refusal
[24]
The second argument advanced on behalf the respondents by Mr Dlamini,
is that the applicants can procure the documents when
a prosecution,
if any, is instituted.
[25]
This argument is correct but misses the point. The documents which an
accused person must wait until charged to get from the
docket are
documents to which he has no right to see, until that moment. The
comparison advanced is not apt if the applicant has
a right to see
them now, independently of a prosecution commencing.
The
nature of this application
[26]
In this case the applicant has brought an application to compel
disclosure,
simpliciter
in the form of a
mandamus
.
On behalf of the applicants Mr Vetten has argued that a person who is
the subject of an ex parte order, taken as such without
notice to the
person and without adherence to the principle of
audi
alterem partem
has been treated in an extraordinary and arbitrary fashion. It must
follow that such person has a right to challenge such an order
and do
so expeditiously. That notion, is itself not controversial, but in
addition, in pursuit of such right, a person must have
an ancillary
right to effectively interrogate the basis for the order granted
ex
parte
by a court. This is the central pillar of Mr Vetten’s argument.
A demand for disclosure of such documents is integral to
the
challenge and the disclosure is instrumental in the effective
assertion of the right.
[27]
By way of comparison, in Anton pillar orders, there is a public
accessible court file to see what was put before the judge
who
authorised it. Where an aggrieved person seeks a reconsideration in
terms of rule 6(12)(c)
[14]
of
an
ex
parte
order taken against such person, it not necessary to beg for the
application relied on by the applicant for the
ex
parte
order. Under the provisions of the
Interception
and Monitoring Prohibition Act 127 of 1992
in terms whereof a tap on a person’s telecommunications can be
judicially authorised, the application to the judicial officer
must
be disclosed when its propriety is challenged.
[15]
A
clear substantive right to disclosure on demand
[28]
The very purpose of requiring judicial oversight over the issue of a
warrant to enter, search and seize is to protect a (natural
or
juristic) person’s rights to privacy and to subordinate, to
judicial scrutiny and oversight, a belief by the police, however
bona
fide, that they really have a need to invade a person’s privacy
and have shown a cogent basis for a lawful invasion
to be authorised,
because not every alleged crime justifies a search warrant to procure
evidence.
[29]
Accordingly, it seems to me that such considerations point towards
any person indeed having a right of access to the founding
papers in
respect of a search warrant, as part and parcel of the broader right
to privacy and freedom from arbitrary state action.
These are values
which permeate the Constitution. For the purposes of this case
Section 14 of the Constitution is relevant
in relation to the
invasion of privac
y
and the misappropriation of private information, but other
sections of the Constitution address the absence of arbitrariness
too; in particular, sections 12, 20, 21, 25, 33, and 35.
[30]
In my view, in any exercise to assert the right to privacy and
freedom from arbitrary state power, where a procedure that is
orderly
and conducive to expeditious litigation is selected, it is improper
to resist disclosure. The insistence on the use of
a rule 53
procedure is inappropriate, and the idea of awaiting a prosecution
misdirected.
[31]
Accordingly, the relief in prayer 2 should be granted.
Prayer
3: The demand for copies of the photographs and notes of serial
numbers
[32]
The copies of the documents demanded are the fruits of the search and
are ancillary to the founding documents. They are relevant
to
demonstrate the actions performed in the search and to illustrate the
alleged disconnection between what the CGA can authorise
and what
indeed occurred. It is argued on behalf of the respondents that these
items are not strictly necessary or essential to
prosecute part B; I
agree, but it is artificial to distinguish them from the
documentation which authorised bringing them into
existence, and once
the ‘founding documents’ ought to be disclosed, these
ancillary documents ought also to be provided.
[33]
It follows that if prayer 2 is granted so should prayer 3.
Prayer
5.1 and 5.2: The demand for the preservation and sealing of the
photographs and notes, and interdicting anyone from using
the data
for any purpose adverse to the applicant’s interest pending the
decision in Part B.
[34]
The true gravamen of the interim relief sought in these prayers is
the prevention of use or abuse of the applicants’
private
information. The part B proceedings envisage asserting a breach of
privacy by an unlawful invasion and an unlawful misappropriation
of
private information. There is a logical need for the interim
preservation of the confidentiality of the applicant’s
information
until that assertion has been tested in part B. If the
applicant succeeds in setting aside the warrant then the fruits
thereof
may be illegitimately in the possession of strangers. It is
common cause that the applicant and Tellytrack, a trade competitor,
are at loggerheads and Tellytrack may obtain access to the
applicants’ information without lawful justification and, at
least potentially, use it to identify the DSTV codes which it can
divulge to MNET to cut off the applicant’s access to services.
The risk is sufficient to establish an imminent potential harm.
[35]
Accordingly, in my view interim protection is appropriate because the
applicants have a clear right to protect the confidentiality
of their
information, and because there is, axiomatically, no effective
alternative remedy but an interdict.
[36]
As to prospects of success, there are manifest difficulties with this
warrant. Most obvious is the failure to describe a crime.
Moreover,
no goods are described as counterfeit. The throwaway allusion to a
‘breach of copyright’ cannot be construed,
however
generously, as an identification and description of a crime, a
minimum standard for validity.
[16]
Moreover, the controversy about whether the CGA can properly be used
as a Launchpad to protect theft of copyright, assuming
copyright
ownership is proven, is based on a rather tenuous premise and may
turn out to be a contention that shall have to scale
some
considerable height. It is enough for the purposes of part A to
conclude that it is an open question, at best.
Prayer
5.3: The demand to know who has been given the information?
[37]
The appropriation of private information without the consent of its
owner is tolerable only when it occurs pursuant to lawful
authorisation. Until the question of the lawfulness of the
appropriation is settled, the dissemination of private information
ought not to be allowed because the prospect of it being abused to
the detriment of the applicants is plain. Accordingly, relief
in the
form of the identification of the persons who have had access to the
private information is appropriate to facilitate steps
by the
applicants to effectively protect any further dissemination of their
private information.
[38]
An order to disclose the names of the persons, if any, who have or
have had access to the private information is appropriate.
Costs
[39]
The applicant has been successful and costs ought to follow that
result.
Conclusion
and order
[40]
Accordingly, an order shall be made in terms of prayers 2, 3, and 5
as set out in the notice of motion. As to costs, an order
in terms of
prayer 6.1 is made against the respondents, save for the 9
th
-10
th
respondents who did not pose the application) the one paying the
others to be absolved. The order is as follows:
(1)
The Respondents are ordered to deliver a
copy of the complaint affidavits/statements, together with annexures
used in support of
the applications brought, on or about the 27
th
May 2014, for the following search and seizure warrants:-
(a)
a search warrant issued by the Third
Respondent on or about the 27
th
May 2014 in respect of premises described as BetXchange, Cnr. Main &
Geranium Streets, Rosettenville (“the BetXchange
Premises”),
a copy of which is annexed to the founding affidavit (“the
BetXchange Warrant”).
(b)
a search warrant issued by the Third
Respondent on or about the 27
th
May 2014 in respect of premises described as Playbet, 546 Jues
Street, Malvern, Johannesburg (“the Playbet Premises”),
a
copy of which is annexed to the founding affidavit (“the
Playbet Warrant”).(the aforementioned warrants are referred
to
as “the search warrants”);
(2)
The First, Second and Fourth Respondents
are ordered within 24 hours to furnish the Applicants with copies of
all photographic images
created by them in the course of the
execution of the search warrants; and to deliver up all records of
the identification numbers
of the DSTV decoders and/or smart cards in
whatever form such records have been kept.
(3)
Pending the determination of the relief
sought in Part B:-
(a)
all items seized pursuant to the search
warrants, including all information, documents, data and photographic
images, shall be sealed
in the possession of the Registrar of this
Honourable Court, alternatively an independent and trustworthy
stakeholder as agreed
between the parties;
(b)
the Respondents, including any officers,
employees or agents of the Respondents are interdicted from handling,
dealing with, processing,
examining, interpreting or in any other way
having access to the seized items, including all information,
documents, data and photographic
images;
(4)
The Respondents are ordered forthwith to
disclose to the applicants the names of all persons who have been
orally advised as to
the contents of the inventory forms and/or are
in possession of the inventory forms and/or any of the photographic
images.
(5)
The first, third to eighth, and twelfth
respondents shall pay the costs of this application jointly and
severally, the one paying
the others to be absolved.
ROLAND
SUTHERLAND
Judge
of the High Court of South Africa
Hearing:
27 October 2014
Judgment:
24 November 2014
For
the Applicants:
Adv
Dirk Vetten
Instructed
by John Joseph Finlay Cameron
For
1
st
, and 4
th
- 8
th
Respondents
Adv
M W Dlamini
Instructed
by the State Attorney
For
the 12
th
Respondent
Adv
Adrian Friedman
Instructed
by Roodt Inc
[1]
Section
14 of the Constitution provides:
Everyone
has the right to privacy, which includes the right not to have-
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.
Section
14 rights extend to juristic persons too, though not as extensively
as in respect of a natural person. (See Investigating
Directorate
SEO v Hyundai Motor Distributors
[2000] ZACC 12
;
2001 (1) SA 545
at
[17]
–
[18
] which dealt with the search and seizure provisions of the
National Prosecuting Authority Act 32 of 1998
.)
The
search of the applicants’ property was plainly encapsulated by
Section 14(b).
(
see too: Hyundai at [20].)
‘Private
information’ is not a term used in
Section 14
, but as
Section
14
is not a closed list, it follows logically that it too is be
encapsulated by the concept of privacy articulated in the section.
The term ‘personal information’ has been employed in the
Promotion of Access to Information Act (PAIA) to apply to
‘individuals’ ie natural persons, only, and is the
subject of an extensive definition in section 1 of PAIA. Accordingly
it seems sensible to employ the term ‘private information’
for information of a juristic person intended to be confidential
to
that juristic person. The gravamen of the protection of personal
information in PAIA is to prevent or limit the identification
of
individuals through connections being made between otherwise
disparate pieces of information and the opportunity that can
arise
thereby to prejudice those individuals. The facts of this case are
an illustration of exactly that predicament in respect
of a juristic
person.
[2]
Tellytrack
brought itself into this case by way of an unopposed joinder
application, despite no conceivable relief being claimable
against
itself, and to compound that anomaly, Mr Friedman, fairly and
properly concedes that now that it is in the case, it is
exposed to
an adverse costs order.
[3]
Setlogelo
v Setlogelo
1914 AD 221
[4]
Section
6(1)
of the
Counterfeit Goods Act (CGA
) 37 of 1997 provides:
The warrant contemplated in
section 4
(2) read with
section 5
(1)
will be issued in chambers by any judge of the High Court or by a
magistrate who has jurisdiction in the area where the relevant
suspected act of dealing in counterfeit goods is alleged to have
taken or to be taking place or is likely to take place, and
will be
issued only if it appears to the judge or magistrate from
information on oath or affirmation that there are reasonable
grounds
for believing that an act of dealing in counterfeit goods has taken
or is taking place or is likely to take place, and
the inspector
seeking the warrant may be asked to specify which of the powers
contemplated in
section 4
(1) is or are likely to be exercised.
[5]
See:
Pretoria Portland Cement Co Ltd & Others v Competition
Commission & Others
2003 (2) SA 385
(SCA) at [23] – [24]
[6]
Section
2
of the CGA provides:
Dealing
in counterfeit goods prohibited and an offence
(1)
Goods that are counterfeit goods, may not-
(a)
be in the possession or under the control of any person in the
course of business for the purpose of dealing in those goods;
(b)
be manufactured, produced or made except for the private and
domestic use of the person by whom the goods were manufactured,
produced or made;
(c)
be sold, hired out, bartered or exchanged, or be offered or exposed
for sale hiring out, barter or exchange;
(d)
be exhibited in public for purposes of trade;
(e)
be distributed-
(i)
for purposes of trade; or
(ii)
for any other purpose to such an extent that the owner of an
intellectual property right in respect of any particular protected
goods suffers prejudice;
(f)
be imported into or through or exported from or through the Republic
except if so imported or exported for the private and
domestic use
of the importer or exporter, respectively;
(g)
in any other manner be disposed of in the course of trade.
(2)
A person who performs or engages in any act or conduct prohibited by
subsection (1), will be guilty of an offence if-
(a)
at the time of the act or conduct, the person knew or had reason to
suspect that the goods to which the act or conduct relates,
were
counterfeit goods; or
(b)
the person failed to take all reasonable steps in order to avoid any
act or conduct of the nature contemplated in subsection
(1) from
being performed or engaged in with reference to the counterfeit
goods.
[7]
Section
1
of the CGA provides:
'counterfeiting'-
(a)
means, without the authority of the owner of any intellectual
property right subsisting in the Republic in respect of protected
goods, the manufacturing, producing or making, whether in the
Republic or elsewhere, of any goods whereby those protected goods
are imitated in such manner and to such a degree that those other
goods are substantially identical copies of the protected goods;
(b)
means, without the authority of the owner of any intellectual
property right subsisting in the Republic in respect of protected
goods, manufacturing, producing or making, or applying to goods,
whether in the Republic or elsewhere, the subject matter of
that
intellectual property right, or a colourable imitation thereof so
that the other goods are calculated to be confused with
or to be
taken as being the protected goods of the said owner or any goods
manufactured, produced or made under his or her licence;
or
(c)
where, by a notice under section 15 of the Merchandise Marks Act,
1941 (Act 17 of 1941), the use of a particular mark in relation
to
goods, except such use by a person specified in the notice, has been
prohibited, means, without the authority of the specified
person,
making or applying that mark to goods, whether in the Republic or
elsewhere.
However,
the relevant act of counterfeiting must also have infringed the
intellectual property right in question;
'counterfeit
goods' means goods that are the result of counterfeiting, and
includes any means used for purposes of counterfeiting;
[8]
Section
5(1) (a) – (e) of the CGA provides:
(1)
An inspector acting on the authority of and in accordance with a
warrant issued under section 6, may at any reasonable time-
(a)
enter upon or enter, and inspect, any place, premises or vehicle at,
on or in which goods that are reasonably suspected of
being
counterfeit goods, are to be found or on reasonable grounds are
suspected to be or to be manufactured, produced or made,
and search
such place, premises or vehicle and any person thereat, thereon or
therein, for such goods and for any other evidence
of the alleged or
suspected act of dealing in counterfeit goods. For the purposes of
entering, inspecting and searching such
a vehicle, an inspector who
is a police official or who is assisted by a police official may
stop the vehicle, if necessary by
force, wherever found, including
on any public road or at any other public place;
(b)
take the steps that may be reasonably necessary to terminate the
manufacturing, production or making of counterfeit goods,
or any
other act of dealing in counterfeit goods being performed, at, on or
in such place, premises or vehicle, and to prevent
the recurrence of
any such act in future. Those steps may include any of the steps
contemplated in paragraphs (c), (d) and (e)
but do not include the
destruction or alienation of the relevant goods unless authorised by
the court in terms of this Act;
(c)
seize and detain, and, where applicable, remove for detention, all
the goods in question found at, on or in such place, premises
or
vehicle;
(d)
seal or seal off any place, premises or vehicle at, on or in which-
(i)
the goods in question are found, or are manufactured, produced or
made, either wholly or in part;
(ii)
any trade mark, or any exclusive mark contemplated in paragraph (c)
of the definition of 'counterfeiting' in section 1 (1),
or any work
which is the subject matter of copyright, is applied to those goods;
(iii)
the packaging for those goods is prepared; or
(iv)
the packaging of those goods is undertaken;
(e)
seize and detain, and, where applicable, remove for detention, any
tools which may be used in the manufacturing, production,
making or
packaging of those goods or applying a trade mark or that exc
lusive
mark or such a work to them;…
[9]
Rule
53 provides: (1) Save where any law otherwise provides, all
proceedings to bring under review the decision or proceedings
of any
inferior court and of any tribunal, board or officer performing
judicial, quasi-judicial or administrative functions shall
be by way
of notice of motion directed and delivered by the party seeking to
review such decision or proceedings to the magistrate,
presiding
officer or chairman of the court, tribunal or board or to the
officer, as the case may be, and to all other parties
affected-
(a)
calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside,
and
(b)
calling upon the magistrate, presiding officer, chairman or officer,
as the case may be, to despatch, within fifteen days
after receipt
of the notice of motion, to the registrar the record of such
proceedings sought to be corrected or set aside, together
with such
reasons as he is by law required or desires to give or make, and to
notify the applicant that he has done so.
(2)
The notice of motion shall set out the decision or proceedings
sought to be reviewed and shall be supported by affidavit setting
out the grounds and the facts and circumstances upon which applicant
relies to have the decision or proceedings set aside or
corrected.
(3)
The registrar shall make available to the applicant the record
despatched to him as aforesaid upon such terms as the registrar
thinks appropriate to ensure its safety, and the applicant shall
thereupon cause copies of such portions of the record as may
be
necessary for the purposes of the review to be made and shall
furnish the registrar with two copies and each of the other
parties
with one copy thereof, in each case certified by the applicant as
true copies. The costs of transcription, if any, shall
be borne by
the applicant and shall be costs in the cause.
(4)
The applicant may within ten days after the registrar has made the
record available to him, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of his notice of motion
and supplement the supporting affidavit.
(5)
Should the presiding officer, chairman or officer, as the case may
be, or any party affected desire to oppose the granting
of the order
prayed in the notice of motion, he shall-
(a)
within fifteen days after receipt by him of the notice of motion or
any amendment thereof deliver notice to the applicant
that he
intends so to oppose and shall in such notice appoint an address
within eight kilometres of the office of the registrar
at which he
will accept notice and service of all process in such proceedings;
and
(b)
within thirty days after the expiry of the time referred to in
subrule (4) hereof, deliver any affidavits he may desire in
answer
to the allegations made by the applicant.
(6)
The applicant shall have the rights and obligations in regard to
replying affidavits set out in rule 6.
(7)
The provisions of rule 6 as to set down of applications shall
mutatis mutandis apply to the set down of review proceedings.”
[10]
Jockey
Club of South Africa v Forbes 1993(1) SA 649 (A) at esp 662F-G.
[11]
Rule
6 of the uniform rules provides for a simple procedure requiring the
applicant to serve and file a notice of motion with
a supporting
affidavit, and no more.
[12]
Rule
35(12) Any party to any proceeding may at any time before the
hearing thereof deliver a notice as near as may be in accordance
with Form 15 in the First Schedule to any other party in whose
pleadings or affidavits reference is made to any document or tape
recording to produce such document or tape recording for his
inspection and to permit him to make a copy or transcription
thereof.
Any party failing to comply with such notice shall not,
save with the leave of the court, use such document or tape
recording
in such proceeding provided that any other party may use
such document or tape recording.
Rule
35(13) The provisions of this rule relating to discovery shall
mutatis mutandis apply, in so far as the court may direct
to
applications.
[13]
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO & Others
1999 (2) SA 599
(T);
Investec Bank Ltd v Blumethal N.O. [2012] ZAGPJHC 21.
[14]
Rule
6(12)(c) provides: ’A person against whom an order has
been granted in his absence in an urgent application may
on notice
set down the matter for reconsideration of the order.’
[15]
See,
eg: Mngomezulu v NDPP
2008 (1) SA 105
(SCA), an example
where, subject to a judicially approved redaction, the documents
were disclosed.
[16]
Minister
of Safety and Security v Van der Merwe
2011 (5) SA 61
(CC)