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[2010] ZAGPPHC 125
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Johnson and Johnson v Setshogoe N.O and Others (34277/2009) [2010] ZAGPPHC 125 (29 September 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 34277/2009
DATE:
29/09/2010
IN
THE MATTER BETWEEN:
JOHNSON
&
JOHNSON
...............................................................................
APPLICANT
AND
MAGISTRATE
N SETSHOGOE NO
..............................................
FIRST
RESPONDENT
SURIKA
LOURENS
NO
............................................................
SECOND
RESPONDENT
ROWAN
TREE
1123CC
................................................................
THIRD
RESPONDENT
ELIZABETH
MARGARET VENTER
.........................................
FOURTH
RESPONDENT
COENRAAD
HENDRIK SWART
...................................................
FIFTH
RESPONDENT
THE
MINISTER OF SAFETY AND SECURITY
............................
SIXTH
RESPONDENT
MISTER
MOVER
CC
...............................................................
SEVENTH
RESPONDENT
JUDGMENT
EBERSOHN,
AJ
1.
The
applicant is a New York, USA, company.
2.
On
the 4
th
of April 2008 the applicant obtained a search and seizure warrant
against the second, third and fourth respondents in terms of
section
6, read with sections 4 and 5 of the
Counterfeit Goods Act, no. 3 of
1997
, pursuant to an affidavit of complaint lodged with the South
African Police Services (SAPS). The affidavit itself was neither
attached
to the founding papers nor put before this court.
3.
The
warrant was executed by members of the SAPS at the premises of the
third, fourth and fifth respondents and reflected what they
seized in
an inventory and the seized goods were stored in an approved depot of
the sixth respondent.
4.
The
applicant then caused letters to be addressed to the third, fourth
and fifth respondents regarding the applicant's intention
to
institute civil proceedings against them and the summons was
eventually issued and served on them.
5.
The
criminal proceedings instituted on the strength of the applicant's
complaint, was, however, withdrawn against the third, fourth
and
fifth respondents and the magistrate ordered the return of the seized
goods to them. This was done.
6.
The
applicant then brought an urgent application in this court on the
23
rd
of June 2009 but it was postponed
sine
die
with
costs reserved.
7.
The
matter eventually came before me, was argued and I reserved judgment.
8.
The
applicant on the 24
th
of June 2009 served a notice of its intention to amend the notice of
motion by inserting therein a further prayer marked 1A wherein
the
return was claimed from the third, fourth and fifth respondents of
all the items that was returned to it by the officials pending
the
final determination of the review proceedings or such further order
as this court may make concerning the disposal of the evidence.
9.
The
amendment was opposed and it was contended on behalf of the
respondents that whatever was returned has been removed from the
bags
and that the respondents were not able to verify what was originally
seized and what was in the bags when the bags were returned
in terms
of the magistrate's order.
10.
Mr.
Morley, who appeared for the applicant contended that it was most
improper of the third, fourth and fifth respondents to take
control
of the goods that was seized and released without advising the
applicant that it was released and asked that the relief
be granted
against the respondent in terms of the amended prayers.
11.
Mr.
Vetten, who appeared for the third respondent, objected to the
amendment of the prayers and argued that no case was made out
in the
papers for such relief and that this court could not grant the relief
sought in terms of the proposed amendment as the only
basis on which
the possessor's possession could be disturbed would be by way of a
fresh search and seizure warrant. He also argued
that the search and
seizure was a wholesale fishing expedition, the inventory that was
prepared was of no use in identifying what
was taken and that there
was no correlation between what was taken and what was authorised to
be taken. In this regard I must agree
with Mr Vetten. The inventory
is in telegram style and in some places nonsensical and I quote some
of the items appearing on the
inventory:
"Plastic
bag with files;"
(9
items)
"Steel cabinet;"
(3
items)
"Plastic bag with hard drive;" "Plastic bag with PC."
"6
x
One Touch Stepsure boxes" "One Touch Sure Stepsure boxes"
"Sure step Plus (empty box)"; "Sure step
Hospital
(empty box)"; "Steel cabinet (locked)";
"Blue
white suitcase"
"ATE"
"ABSA"
"CHASA
FLOW" "TJ PAYMENTS" "DHL" "VAT UTC"
"ZEE LeER" "ZZ"
"COLO
PLAAS" "ROWAN TREE" "TARGET"
12.
It is clear that it would be impossible to put together again
whatever is referred to in the inventory.
13.
A
proper case must be made out before a review and the setting aside of
the magistrate's decision to have the seized articles returned
can be
granted. Mr. Veten argued that no case has been made out.
14.
Mr
Vetten also argued that the appellant is already exhausting a remedy
it has namely by proceeding against the third, fourth and
fifth
respondents by way of action and the applicant can acquire the
information and proof they require by calling upon his clients
to
make a discovery in terms of the court rules.
15.
It
is clear that the matter is not urgent and that the applicant did not
make out a case for the relief asked for. Costs must follow
the
event.
16.
The
matter was postponed on the 23
rd
of June 2009 to enable the applicant to prepare the amendment and the
reserved costs must accordingly also be awarded against the
applicant.
17.
I accordingly make the following order:
1.
The
application is dismissed with costs, such costs to include the
reserved costs of
23
rd
July
2009.
PZ
EBERSO
HN
ACTING
JUDGE OF
THE
HIGH
COURT
Applicant's
counsel
ADV.
G.E.
Morley
SC
Applicant's
attrorneys
Spoor
& Fisher
Tel.
012
676 1285
Ref.
LN3007010
/MAK
Third
respondent's counsel
Adv.
D. Vetten
Third
responent's attorneys
Martini/Patlansky
Tel.
011
4871091
Ref.
Mr.
M. Martini