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[2010] ZAGPPHC 98
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Greenwoods No. 25CC v Nong and Others (19440/2010,19758/2010) [2010] ZAGPPHC 98 (6 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT)
Case
Number: 19440/2010
Case
Number: 19758/2010
Date:
06/08/2010
In
the matter between:
GREENWOODS
NO. 25CC 1st APPLICANT
vs
THE
LEARNED MAGISTRATE YVONNE NONG 1st RESPONDENT
INSPECTOR F. J. NEPGEN
2nd RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS - NORTH 3rd RESPONDENT
GAUTENG
HIGH COURT (PRETORIA) MINISTER OF
SAFETY
& SECURITY 4
th
RESPONDENT
KOBUS
HATTINGH 5th RESPONDENT
PROFERRO
CC 6th RESPONDENT
JUDGMENT
Matter
heard on: 18 June 2010
Delivered
on: 6 August 2010
POTTERILL
J,
1.
The applicant is applying under both case numbers 19440/2010
19758/2010 for the setting aside of search warrants granted by the
first respondent (Magistrate Nong) on respectively 5 (sic) November
2007 and 23 September 2008. The court is also requested to
direct
that all the objects/items seized from the Applicant's premises on 5
(sic) November 2007 and 23 September 2008 be restored
forthwith to
the Applicant. A declaratory order is also sought that the search and
seizures carried out on 5 (sic) November 2007
and 23 September 2008
were unlawful. It is in fact common cause that the warrant in
November 2007 was granted on the sixth and
not the fifth.
2.
The first respondent is the Magistrate who authorized the warrants.
The second respondent is the Inspector who applied for and
executed
the warrants. The third and fourth respondents are respectively the
Director of Public Prosecutions and the Minister of
Safety and
Security. The fifth respondent is Kobus Hattingh, the person averring
that the applicant was counterfeiting goods to
which copyright
attached and the copyright vests in him and/ or Proferro. At the
commencement of the application Proferro CC was
joined, without
opposition, by the applicant as sixth respondent. Ms Khatri
represented the first to fourth respondents and Mr
Michau appeared
for fifth respondent. Mr Omar assisted by Ms Naidoo acted for the
applicant.
3.
On the 5th day of September 2007 Mr Jacobus Christiaan Hattingh, a
member of Proferro CC deposed to a complaint affidavit. Paragraph
4.1
sets out the core of the complaint:
"The
works which Proferro and \, contend are being counterfeited by Just
Africa and/or Mr Cassim, are works that are the subject
of copyright,
which copyright vests in Proferro. More particularly, these are
statutes which, I am advised, qualify as artistic
works in terms of
the provisions of the
Copyright Act 98 of 1978
("the
Copyright
Act"
;.)" In paragraphs 10-13 of this affidavit he sets out
how his sculptures are made. In paragraph 14 he sets out the history
between Proferro and Just Africa/Greenwoods CC and Mr Cassim. In
paragraphs 14.3 and 14.4 he states:"...several incidents
occurred which led me to believe that Just Africa (aided and assisted
by Mr Omar and Mr Cassim) were copying the animal sculptures
that
Proferro had sold then. I questioned them about it and they
vehemently denied that they were doing so and assured me that
they
would not do so. My suspicions were however confirmed some time
during 1994, when they brought to me three statutes of a tortoise
for
repair and in order for them to be "repainted". According
to Mr Cassim and Mr Omar, someone had spilled something
on these
tortoise statutes which had damaged the paint; Mr Omar and Mr Cassim
were however blissfully unaware that I had made the
tortoises that
Proferro had sold to them by pigmenting the material used in the
sculpture in unique fashion and that I had not
painted the tortoises.
It was therefore clear to me that they had used the tortoise statutes
that I had sold them in order to make
a mould of their own and
thereby copying the statute."
In
paragraphs 17 -21 he then sets out specific instances whereby Just
Africa and Mr Cassim have infringed the copyrighted works
of Proferro
and have made counterfeit copies of those works. He then requested
the necessary search warrant to be granted in terms
of Section 6 of
the Counterfeit Goods Act, Act No 37 of 1997 (herein after referred
to as the CGA) and that the search warrant
is executed. There was
also an affidavit by Ms Marilyn Krige, from the firm Adams and Adams,
the legal representative of the fifth
respondent. Inspector Nepgen
deposed to an affidavit in support of the application for the warrant
on suspicion that an act of
counterfeiting was being committed. He
executed the warrant in the presence of Mr Cassim.
4.
On 14 July 2008 a further complaint was laid by Marilyn Krige, an
admitted attorney of Adams and Adams as attorney of record
for
Proferro CC. The complaint resulted in a warrant being issued in
terms of Section 6 as read with Sections 4 and 5 of the CGA.
In the
complaint it is averred that Jacobus Christiaan Hattingh created
original artistic works, being sculptures of various animals.
The
copyright works were created by Hattingh, the fifth respondent, in
the course and scope of his employment with the sixth respondent,
Proferro CC. In this complaint reference is made to the search and
seizure operation that was carried out at the premises of Just
Africa, being a trading style of the applicant, on 6 November 2007.
In paragraph 8.2 of this complaint it is averred that despite
the
operation taken in 2007 further investigation revealed that the
applicant continued to manufacture and deal in the offending
sculptures.
The
complainant accordingly requested a fresh application for a search
and seizure warrant.
Inspector
Nepgen then deposed to an affidavit and applied to the Magistrate in
Brits to have the warrant issued. The warrant was
granted on 1 August
2008. This warrant was cancelled on the request of the attorney, Ms
Krige, whom informed him that she intended
making an affidavit
supplementing the original affidavit. This was done on 20 August
2008. The two affidavits of Ms Krige and his
own affidavit were
placed before the magistrate. The magistrate then granted the
warrant. The warrant was executed on 23 September
2008.
5.
Mr Omar placed much emphasis on the new constitutional jurisprudence.
It was argued that despite the CGA being promulgated three
years
after 1994, the right to privacy is invaded and I am to apply section
39(2) of the Constitution when interpreting this act;
this speaks for
itself.
6.
Ms Naidoo argued that the warrants should not have been granted ex
parte as there was no inherent risk that the goods would be
destroyed
or disposed off. The purpose of these search and seizures were to
prevent any further dealings in counterfeit goods.
There is no
provision in the CGA that notice must be given to the affected party.
There is always the distinct danger that the
object of the search and
seizure would be defeated if notice is given. In Zuma v National
Director of Public Prosecutions 2009(1)
SA 1 CC at paragraph 98 it
was found: "...it may well be that the more serious the crime,
the more likely it will be that
suspects or their associates will
remove or destroy incriminating evidence. In the absence of such
inherent risk, a judicial officer
may justifiably require
notification of the party to be searched, for the Act does not
preclude this. However, in the ordinary
course, the provision of
notice to affected parties has the potential to frustrate the purpose
or the detection and investigation
of serious, complex and organised
crimes, evidence of which is often to be found in documentary form or
stored on computers, which
can be easily destroyed or altered."
I am satisfied that on the facts set out in both complaints there was
no need to give
the applicant notice of the applications.
7.
Ms Naidoo also argued that the interrogation procedure in terms of
s5(1)(f) of the CGA should have been utilized and not the
search and
seizure procedure. This was because the fifth respondent is a
competitor of the applicant and they had a long standing
dispute.
Section 5(1 )(f) is not a separate procedure to search and seizure.
It is in fact one of the powers of an inspector only
granted acting
on the authority of and in accordance with a warrant issued for
search and seizure. This submission is thus rejected.
8.
The applicant argued that the applicant does not have the onus to
persuade this court that the relief should not have been granted
against the Applicant. He argued that the onus stays on the
respondents that they were entitled to the warrants. This argument
is
flawed in so far as that the applicant has the onus to prove that he
is entitled to the relief claimed in the notice of motion;
this is so
even if the onus rested on the respondents. The principle as set out
in Plascon Evans Paints v Van Riebeeck Paints (Pty)
Ltd 1984(3) SA
623 (A) has to be applied to the application before me.
9.
Mr Omar on behalf of the applicant submitted that because the first
respondent made no affidavit the affidavit of the applicant
must be
seen as unchallenged. In support of this contention I was referred to
Toich v Magistrate, Riversdale and Others 2007 (2)
SACR 235 (C) and
The Minister of Safety & Security and Two Others v Mustafa
Mahomed and Another- Western Cape High Court Case
no A228/09
delivered on 30 April 2010. I can not find support in the above two
matters for the contention that evidence by the
Magistrate is
peremptory. I agree with the finding of my brother McCall J in
Greenberg And Others v Minister of Safety and Security
And Another
BIP 2004 313 at 323 G-H "Since the warrants have been executed
and the applicants do not seek to review the decisions
to issue the
warrants, I am of the view that it was, and is, not necessary to cite
the magistrate or magistrates and the said Minister,
as they have no
interest in the issue of a determination of whether the goods seized
are in fact counterfeit goods and whether
they should be returned to
the applicants." This position was confirmed in the matter of
Shoprite Checkers (Pty)Ltd v The
Commissioner of the South African
Revenue Services and Others BIP 2008 369 on 373 B-C. There is
accordingly no obligation on the
Magistrate to file an opposing
affidavit. The affidavit in support of the application is challenged
by the affidavit of the second
respondent.
10.
On behalf of the applicant it was also argued that the second
respondent had no authority to make the affidavit on behalf of
the
first, third and fourth respondents and the affidavit must be struck
out as inadmissible hearsay evidence. In the replying
affidavit
[paragraph 7] the following is stated:
"The
second respondent is placed to the proof of proving that he is
authorized to depose on behalf of the first, third and
fourth
respondents. The reasons for my denial of this paragraph will appear
hereunder." The only reason in the replying affidavit
is to be
found in paragraph 11.2:
"Noteworthy
is deponent's failure to state the source of the information or
grounds of belief for his purportedly signing an
affidavit on behalf
of the 1st, 3rd and 4th respondents."
Frederick
Jacob Nepgen states under oath that he is warrant officer with the
commercial crimes unit and employed by the second respondent.
In
paragraphs 1.3 and 1.4 of the opposing affidavit he states as
follows:
"I
am duly authorized to depose to this affidavit on behalf of the
First, Third and Fourth Respondents in this matter."
Inspector
Nepgen refers only to matters within his own knowledge and can swear
positively to the facts. No specific authority is
required, only the
institution of proceedings must be authorized-:-Plettenberg Bay
Country Club v Bitou Muncipality 2006(4) ALL
SA 395(C) This principle
is confirmed in Gaines And Another v Telecom Namibia Ltd 2004(3) SA
615 SCA at 624 G-H:
"In
my view it is irrelevant whether Hanke had been authorized to depose
to the founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorized by the party concerned to depose
to the affidavit. It is the institution of the proceedings
and the
prosecution thereof which must be authorized."
In
casu it must be accepted that the institution of the proceedings was
duly authorized because there is no challenge thereof in
the
application.
In
any event the applicant is raising a bare denial of authority and
accordingly minimum formal evidence from the respondent is
required.
11.
I find it practical to now deal with the argument that Inspector
Nepqen was never asked by the first respondent to produce his
certificate of appointment contemplated by the provisions of Section
22(3) of the CGA and the applicant accordingly denies that
he has
such a certificate. In terms of section 22 the Minister has the power
to appoint or designate inspectors. The Minister must
issue to an
appointed or designated inspector a certificate. The definition of
Inspector reads as follows:
"Inspector
means any person who under or by virtue of section 22 has been
appointed or designated to be an inspector for the
purposes of this
Act, as well as-
(a)
any police official as defined in section 1(1) of the Criminal
Procedure Act, 1977(Act 51 of 1977), holding the rank of sergeant
or
a higher rank;..."
Inspector
Nepgen is a Warrant Officer employed by the Minister of Safety and
Security (second respondent) at the commercial crimes
unit. He is
thus not an inspector by means of being appointed or designated but
by virtue of being a police official holding the
rank of sergeant or
higher. This bare denial by the applicant that the inspector has no
certificate is rejected.
12.
It was argued that the magistrate did not apply her mind. In the
affidavit this bold statement is made without setting out any
grounds
[paragraphs 30 and 39]. From the bar it was argued that the failure
to apply her mind can be inferred from the ticking
of the boxes on
the roneo forms; on both warrants simply all the boxes are ticked.
She should also when approached in 2008 have
recalled that in 2007
she had granted a similar warrant and have enquired what happened to
the first warrant.
Both
these submissions are rejected. On the form whereby Inspector Nepgen
was authorized to search and seize in 2008 the first 5
blocks are
ticked, on the form of 2007, the first 6 blocks are ticked. There is
nothing untoward in the ticking of all the boxes
and it gave effect
to the comprehensive complaint affidavits of Mr Hattingh in 2007 and
Ms Krige in 2008. The boxes reflect the
wording of the CGA. It allows
the inspector to enter the premises, inspect the premises, collect or
obtain evidence, seize and
detain goods and question or take a
statement. The boxes ticked authorize a systematic flow of search and
seizure provided for
in the CGA.
In
the affidavit of Ms Krige in 2008 she refers to the fact that despite
the 2007- warrant the respondent in casu was persisting
with the
conduct; the magistrate thus knew about the 2007 warrant and why a
further one was requested.
Ms
Naidoo argued that as the ticks were typed the Magistrate did not
choose them herself and accordingly did not apply her mind.
In the
respective matters the Magistrate had the benefit of the detailed
affidavits Mr Hattingh and Ms Krige. The affidavits and
photographs
clearly apprised her of all the facts and I can not see on what
plausible basis it can be argued that she did not apply
her mind. The
affidavits set out reasonable suspicion. The ticked boxes specify
which of the powers contemplated in section 4(1)
is to be exercised.
In terms of s6 (1) the ticking of the boxes is the manner it which
the inspector specifies to the Magistrate
which powers are to be
utilized, it is not the Magistrate's function. The Magistrate has the
duty to ensure that the ticked boxes
are not too general, overbroad
and reasonably clear. I can not find that in view of the detail in
the complaints she did not fulfil
her duty accordingly.
13.
In terms of section 3 of the CGA a complaint may be laid by any
person representative or the attorney of any such person. Both
Mr
Hattingh and Ms Krige thus had the right to lay the complaints to
Inspector Nepgen and qualify as complainants in terms of the
definition of "complainant."
14.
A further submission was that if the magistrate had applied her mind
she would have required safe-guards to be built in. This
she would
have done by asking questions relating to the sculptures for example
where are the original sculpture etc. All the suggested
questions
relate to the sculptures and all suggested questions are answered in
the comprehensive affidavit and photographs attached
to the affidavit
of Mr Hattingh. In fact 25 instances are photographed depicting 25
different sculptures made by Proferro and depicting
25 copies thereof
sold by Just Africa. These comparisons were sufficient evidence to
permit the magistrate on reasonable grounds
to believe that an act of
dealing in counterfeit goods had taken place and to issue the
warrants. I can not find that the Magistrate
as custodian of the
Constitution did not fulfil her function to safeguard the intrusion
subject to the limitations which are reasonable
and justifiable in an
open and democratic society.
15.
Although the affidavit to this application before me avers that there
were no material facts before the Magistrate when she
granted the
application this was not argued before me; simply because this
averment is unfounded.
16.
The fact that the complaints had photographs attached thereto was
attacked. Any information, from which the essential physical
and any
other distinctive features, elements and characteristics of the
alleged counterfeit goods may be ascertained, may be furnished.
Photographs are par excellence such information and were confirmed
under oath. In the application before me it is never denied
that the
photographs are what they depict to be.
17.
It was argued on behalf of the applicant that the warrants are
overbroad and is on the papers only substantiated with the following
"that there is no rational connection between the wide terms of
the search warrant and the grounds for justification for such
warrant." In paragraph 32 of the founding affidavit the only
other bold statement is that the respondents did not justify
the
limitation placed on the applicant by virtue of the warrants. In the
applicant's supplementary heads it was argued that the
Magistrate
should have only authorized a warrant for extraction of evidence or
details from the Applicant, not for seizure. The
warrants authorize
the following:
"
1 Enter the above-mentioned place or premises inspect and search it
for suspected counterfeit goods;
2
After entering above-mentioned place or premises, inspect and search
it for any other evidence of alleged/suspected acts of dealing
in
counterfeit goods;
3
Collect or obtain evidence, including relating documents, relating to
the suspected counterfeit goods or the relevant act(s) of
dealing in
counterfeit goods;
4
Seize and detain, and where applicable, remove for detention
suspected an/or identified counterfeit goods found at, on or in the
said place or premises;
5
Question a person or take down a statement from any person found in
possession or in control of the suspected counterfeit goods
if it is
reasonably suspected that such person can furnish information
relating to the dealing in such counterfeit goods"
On
the 2007 warrant there is the added authorization to execute the
warrant during the day.
This
search and seizure is done in terms of Section 6(1) read with
sections 4(2) and 5(1) of the CGA. The purpose of theses sections
are
to confer on inspectors and certain members of the South African
Police Service upon having obtained a warrant to enter premises
and
there to search for, and if found, to seize and remove suspected
counterfeit goods for detention pending the finalisation of
civil or
criminal proceedings to be instituted.
This
is exactly what happened in this matter. The civil trial was set down
for 8 March 2010, but on 5 March 2010 the applicant in
casu requested
a postponement. The matter was postponed but leave was granted to
apply for a preferential date. The civil trials
were then set down
for 8 days to commence on 26 May 2010. On 8 May 2010 the applicant in
casu issued the current applications as
urgent applications. The
applicant then unilaterally removed those applications without
tendering the costs. At the commencement
of the trials it was ordered
that theses applications first be heard. The applicant accordingly
now, respectively 2 and 3 years
after the warrants were executed is
prior to trial now requesting that the warrants be set aside. Against
this background these
search and seizures must be scrutinized to
ascertain whether they constitute a reasonable and necessary
limitation on Section 14
of the Constitution and the right to
privacy. The test whether a warrant is too general or overbroad must
be objectively assessed
by ascertaining whether the warrant is
reasonably intelligible, i.e. will the inspector and the inspected
understand the ambit
of the search.
The
warrants did not go beyond what the CGA permits. On reading both
warrants in the terms expressed Inspector Nepgen must at Just
Africa
Stand 240 Damdoryn execute the warrant on reasonable suspicion of
dealing in Counterfeit Goods. They enter the premises,
they inspect
and search for counterfeit, or suspected counterfeit goods and those
goods are seized pending a civil or criminal
trial. The ambit of the
warrants terms is not too wide. Applying all the principles as set
out in Powell N O and Others v Van der
Merwe N O and Others 2005(5)SA
62 (SCA) I can not find the warrants were too general. It was argued
that three truck loads of goods
were seized in 2007 and it was
invasive to the applicant's business. On the facts the applicant,
after the first warrant, without
an application to set the warrant
aside carries on with his business. A year later he went through the
same search and seizure
procedure; these search and seizures
seemingly did not frustrate his business and was not so general as to
close his business activities.
18.
Another argument was that on the warrants issued the magistrate had
no authority to empower on the 2007-warrant Mr Hattingh,
Ms Krige, Ms
Louw amd Mr Moolla to assist the Inspector. The same argument on the
2008-warrant was raised against the presence
of Ms Krige, Mr Moolla,
Ms A Louw, Mr Hattingh and Ms M Oosthuizen.
In
terms of s6(9) the inspector when undertaking any search for and
inspection and seizure may be assisted by the complainant or
any
other knowledgeable person in identifying the goods. Ms Krige and Mr
Hattingh was the respective complainants and where entitled
to be
there. The other persons are all from the office of Adams and Adams
and as attorneys or article clerks have a workable knowledge
of the
CGA and counterfeit goods. I can not find that the warrants must be
set aside on such argument.
19.
The high water mark of the applicant's argument was that the
peremptory statutory provisions of the CGA were not complied with.
If
this is found to be correct it would be good argument because in the
words of Cameron JA in the Powell-matter supra at paragraph
[59]
..."the courts examine their [warrants] validity with a jealous
regard for the liberty of the subject and his or her
rights to
privacy and property;" Rule 6 of the Supreme Court Act, 59 of
1959, requires that the affidavit attached to the
notice of motion
set out the facts upon which the applicant relies for relief. In the
founding affidavits [paragraph 46] only the
following is averred:
"i)
Section 5(4)(a) of Act 37 of 1997. I never received notice of the
application contemplated in this Section. The records
at the offices
of the 1st Respondent do not reveal that the application contemplated
therein was pursued;
ii)
Section 7(1) of Act 37 of 1997;
Hi)
Section 7(2)(a) of Act 37 of 1997;
iv)
Section 9(1) & (2) of Act 37 of 1997."
The
respondents correctly submitted that paragraph 46 does not set out
the facts relied upon. The respondents were accordingly left
in the
dark as to how the provisions were not complied with when compiling
their answering affidavits. In the applicant's replying
affidavits
there is then an attempt to set out some detail. Despite the
applicant's procedural and substantive failure to set out
facts, only
attempting to do so in the replying affidavits, these points were
argued. The matters needed to be finalized pending
the civil trials.
20.
Mr Omar did not address me on Section 5(4)(a) of the CGA;I think for
the simple reason that Section 5 was in these matters not
applicable
and I accordingly need not address it.
21.
The applicant further contended that section 7(1) and 7(2) of the CGA
were not complied with. It was argued that respondents
did not show
compliance with Section 7(1) (d) of the CGA because the complainant
was not within 72 hours after the seizure furnished
with an
inventory. I reject this contention because there is no such factual
allegation under oath before this court to support
such a submission.
How does the applicant know that the complainants were not furnished
with an inventory? No factual allegations
were made in the founding
affidavit to which the complainants/respondents could react. Mr Omar
assumes this because Annexures AC8
do not contain the signature of
the complainants. The heading on AC8 is "Section 7(1)(d) Notice
(Seizure Notice) to suspect]
the complainants signature will not be
on AC8 as it is the notice in terms of s7(1)(d) to the suspect, not
the notice to the complainant.
I thus accept the respondents version
that they did comply with section 7(1 )(d).
A
court's jealous regard of the validity of the warrants relates to the
subjects that were searched and his/her or its privacy and
property,
and not the complainant's rights. It would be unhealthy jealousy
declaring warrants invalid because the "searched"
is
complaining, on no factual basis, that the complainant did not
receive an inventory.
22.
It is also submitted that the respondents did not reveal compliance
with the provisions of Section 7(2)(a) of the CGA which
reads as
follows: "(2) In any notice in terms of subsection (1)(d) that
is issued-
(a)
to the complainant, the complainant must be notified of his or
her right by virtue of section 9)1 )(a) to lay a criminal
charge, not
later than three days after the date of the notice, against the
person from whom those goods were seized (hereafter
called the
suspect):" Once again in the founding affidavits the fact that
the complainant did not receive such notices is
not averred and the
respondents deny that they did not comply with section 7(2)(a). If
the applicant argues that there was non-compliance
with s7(2)(a) then
to be successful in his applications he must prove that there was
non-compliance; he can not shift the burden
to the respondents There
is no averment that the applicant knew that there was no notice in
terms of s7(2)(a) brought to the attention
of the complainants.
In
terms of s7(1)(d)(i) and 7(1)(d)(i) and 7(d)(ii)(aa) a notice is to
be given to "the person from whom those goods were seized:
and
also the complainant, where the inspector exercised his or her powers
in terms of section 4(1) pursuant to a complaint laid
in terms of
section 3(1)" There are thus two notices required and Annexures
AC8 is the notice to the person from whom the
goods were seized and
not the notice sent to the complainants. From this notice no
inference can be made that no notice was given
to the complainants.
23.
The applicant also argues that the respondents did not comply with
sections 9(1 )(a) & 9(1 )(b) of the CGA. The heading
of section 9
reads: "Seized goods to be released if criminal investigation or
criminal or civil proceedings not contemplated
against suspect."
"9(1 )(a) Where suspected counterfeit goods have been seized by
an inspector in terms of section 4(1),
the complainant or prospective
complainant (as the case may be) if he or she wishes to lay a
criminal charge against the suspect
with the South African Police
Service tor having committed an offence referred to in section 2(2)
and request that a criminal investigation
into the matter be
undertaken, must do so not later than three days after the date of
the notice referred to in section 7(2).
(b)lf,
upon the expiry of that three day period, a criminal charge has not
so been laid, the relevant seized goods must be released
to the
suspect, subject to subsection (2)
Section
9(2) Subject to subsection (3), goods seized in terms of section 4(1)
must be released to the suspect aiso-
(a)(i)
if the State fails within 10 working days after the date of the
notice given to the suspect in terms of paragraph (d) (i)
of section
7(1) to inform the suspect, by further written notice, of its
intention to institute a criminal prosecution against
him or her for
having committed an offence referred to in section 2(2) and
(ii)
if any person to whom notice has been given in terms of paragraph
(d)(ii) of section 7(1) fails within 10 working days after
the date
of that notice to inform the suspect, by further written notice, of
the person's intention to institute against the suspect
civil
proceedings founded on act of dealing in counterfeit goods on the
part of the suspect; or" In both the founding affidavits
no
facts as to why there was non-compliance with Section 9(1) & (2)
are set out. In paragraph 38.5 of Mr Moolla's answering
affidavit
(2007 and 2008-application) he states the following:
"There
is no indication as to why the provisions of Section 9(1) & (2)
of the CGA were allegedly not complied with. I attach
and mark
Annexure "AA8" copies of the letters addressed to the
Applicant indicating that the civil matter would proceed."
In
paragraph 29.8 of the answering affidavit (2007 &
2008-applications) Inspector Nepgen denies that there was
non-compliance
with s9(1). In Paragraphs 29.8 and 29.9 he states:
"
Section 9(2) has also been complied with. I attach hereto as Annexure
"FJN5" a copy of the notice to the Applicant
of the State's
intention to institute criminal proceedings. Proferro also timeously
instituted civil proceedings against inter
alia the Applicant and Mr
Cassim. In the premises, all of the allegations are denied.
In
the replying affidavits to the 1-4th respondents opposing affidavits
the applicant in paragraphs 36.11, 36.12, 36.13 & 36.14
affirmed
to the following:
"The
complainant (5th respondent) was required by the provisions of
Section 9(1 )(a) to request a criminal investigation against
the
Applicant not later than three days after the notice referred to in
Section 7(2) of the "CGA." Respondents, more
specifically
the 5th Respondent has not
revealed
compliance with the three day period provided for by Section 9)1 )(a)
of the" CGA."
"FJN5
to the 1st-4th Respondents answering affidavit is dated 8th October
2008. "FJNS" dated 8th October 2008 is
approximately one
year after the search/seizure operation at Applicant's business
premises on the 6th November 2007. Section 9(2)
prescribes that the
notice contemplated by the provisions of Section 9(2)(a)(i) of the
"CGA" must be given to the Applicant
/I within ten working
days of compliance with the provisions of Section 7*1 ((d) of the
"CGA." Respondents purported
compliance with Section
7(1)(6) of the "CGA" is the 6th November 2007. The date 8th
October 2008 on "FJN5"
clearly emasculates compliance with
the provisions of Section 9(2)(a)(i) of the "CGA."
I
deny that the Applicant received "FJN5". The space for the
date and the signature of Applicant/1 on "FJN5"
is
conspicuously incomplete. "FJN5" in any event does not
follow upon the search on 6th November 2007 but rather the
search of
the 23rd September 2008. The fax transmission report on annexure
"FJN5" reveals date of dispatch to be the
8th October 2008.
Section 9(2)(a)(1) does not contemplate the notice referred to
therein being faxed."
24.
In essence section 9 requires that the suspect be informed of
criminal and civil proceedings within time-frames and if not complied
with the goods seized in terms of section 4(1) must be released to
the suspect.
Just
as the Court will ensure that justice is served by scrutinizing the
warrant to ensure the suspects rights, a Court will not
tolerate
shots in the dark by any party. The applicant does not know whether
the complainant within three days after the date of
the notice in
terms of section 7(2) requested a criminal investigation. In both
applications it is denied by the respondents' that
they did not
comply with rule 9(2). If the applicant makes these averments he must
lay a factual foundation, none is laid and this
submission is
rejected. I accept there was compliance with rule 9(2).
As
for giving notices of criminal prosecutions Annexures FJN4
(2007-warrant) and FJN5 (2008-warrant) show prima facie compliance
with Section 9(2)(a)(i) of the CGA, i.e. written notices to the
suspect within 10 working days of criminal prosecutions. The
respondent
for the first time in the replying affidavit denies that
he received FJN5. These notices have provision for the suspect to
acknowledge
receipt of the written notice and whereas on FJN4 the
suspect signed acknowledgment, on FJN5 he did not acknowledge receipt
of
the notice. It is also argued that notification by fax is not
permitted. On FJN5 there is a fax transmission report indicating the
time, date a.nH number to which the notice was faxed and that the
transmission went through. The applicant can not for the first
time
in the replying affidavit make the bold statement that he did not
receive the fax. He is not prepared to say that it is not
his fax
number or employees did not hand it over to him or any other fact to
substantiate this bold averment. I accordingly accept
the
respondent's version that the applicant was "informed by written
notice" as required by section 9.
25.
The applicant argues that there was non-compliance with section
9(2)(a) pertaining to the warrants.
Annexure
AA8 is a complaint affidavit by Marilyn Krige, duly authorized,
whereby the applicant is informed that Proferro CC intended
to pursue
the criminal matter. The affidavit is attested to on 26 September
2008. AA9 is written notice from M Krige, duly authorized,
on a
letterhead of Adams & Adams to the applicant informing the
applicant that Proferro CC intended to institute civil proceedings.
The letter is dated 8 September 2008. Attached thereto is a fax
confirmation that the letter was sent on" 10/8/2008 10:13:00AM."
A further Annexure with the heading "Mail Envelope Properties"
is attached to AA9. It sets out the date of creation as
being "08
October 2008 10:02:10' and the date and time delivered as being "08
October 2008 10:02:10." Mr Omar argued
that AA9 is clearly a
misrepresentation and that this document was falsified. On the other
hand it was argued that it pertained
to the 2007-warrant, thus
rendering it out of time; instead of the applicant being informed 10
working days after the notice in
s7(1), it was done approximately a
year later.
The
argument that AA9 refers to the 2007-warrant is rejected. Annexure
AA8 pertaining to the 2007-warrant is an affidavit by Ms
Krige, duly
authorized, attested to on the 9th of November 2007 informing the
applicant that the complainant intended to proceed
with criminal
proceedings. Annexure AA8 on the 2007-warrant is a letter written on
an Adams and Adams letterhead whereby the applicant
was informed that
the complainant intended to institute civil proceedings against him.
The letter is dated 20 November 2007 and
a fax confirmation sheet is
attached reflecting the date of transmission as 20 November 2007 at
8:28. The letter was faxed to Mr
du Plessis, the applicant's then
attorney of record. AA9 attached to the 2008 warrant has no
application to the 2007-warrant and
any such version of the applicant
is rejected and respondents' version is accepted.
26.
The serious allegation that a firm of attorneys would falsify a
document is also rejected. The argument of Mr Michau is accepted
that
the date of AA9 (2008-warrant) being reflected as 8 September 2008 is
a typographical error and should be 8 October 2008 is
accepted. This
can be deduced from the correct date on the fax confirmation and Mail
Envelope properties; 8 October 2008. If the
firm had falsified the
document, which I reject, then on probabilities they surely would
have done a better job!
I
accordingly find that all the provisions of section 9(1) and 9(2)(a)
were complied with.
27.
The applicant put no facts before the court as to why section 9(2)
(b) and (c) were not complied with. With no facts before
me the
respondents' version is accepted that in both matters there were
compliance with s9 (2)(b) & (c).
28.
I was after the recess period presented with a letter emanating from
the office of Mr Omar. Apparently further argument pertaining
to the
costs of 11 May 2010 was made. Judgment was already written during
the recess and accordingly the content of the letter
was not
entertained. It would also have been unethical to entertain it
because it was not sent to the respondents for their further
attention.
During
the hearing I was addressed on the costs of 11 May 2010. The matters
were placed on the urgent roll by the applicant and
removed after
opposing affidavits were filed. It was unilaterally removed by the
applicant without tendering the costs. The applicant
should have
tendered the costs as is normal practice. Mr Omar could not convince
me with any argument why the normal principle
should not be applied.
29.
I accordingly make the following order:
29.1
Both the applications under respective case numbers 19440/10 and
19758 /10 are dismissed.
29.2
The applicant is to carry the costs of both applications.
29.3
The applicant is to carry the wasted costs, if any, of 11 May 2010.
S.
Potterill
Judge
of the High Court
Matter
heard on: 18 June
2010
Delivered on: 6 August 2010
Attorneys
for the Applicant:Mr Omar & Me. Naidoo
ZEHIR
OMAR ATTORNEYS.
c/o
FRIEDLAND HART SOLOMON & NICOLSON ATTORNEYS.
Monument
Park.
Pretoria.
012
424 0200
(Ref:
T VAN STRAATEN/CB)
Attorneys
for the 1st. 2nd, 3rd & 4th Respondents: Mr Khatri
THE
STATE ATTORNEYS.
Manaka
Heights.
Pretoria.
012
309 1500
(Ref:
2040/2010/Z5-JJ LE ROUX)
Attorneys
for the 5th & 6th Respondents: Mr Michan
ADAMS
& ADAMS ATTORNEYS.
Hatfield.
Pretoria.
012
481 1500
(Ref:
M MOOLA/LO124811500)