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[2010] ZASCA 149
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Minister of Trade and Industry and Another v E L Enterprises and Another (193/10) [2010] ZASCA 149; 2011 (1) SA 581 (SCA) (29 November 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 193/10
In
the matter between:
THE
MINISTER OF TRADE AND INDUSTRY
…............................................
First
Appellant
DIRK
ASPELING
…....................................................................................
Second
Appellant
and
E
L ENTERPRISES
….................................................................................
First
Respondent
ELGIN
BROOKSTEIN
…........................................................................
Second
Respondent
Neutral citation:
The Minister of Trade and Industry v E L Enterprises
(193/10)
[2010]
ZASCA 149 (29 November
2010)
Coram:
HARMS DP,
HEHER, SNYDERS, TSHIQI JJA AND
R PILLAY AJA
Heard:
3
November 2010
Delivered: 29 November
2010
Summary:
Counterfeit
Goods Act 37 of 1997
– procedure prescribed in
s 5(4)(a)
ORDER
On appeal from: High
Court (Pretoria) (Poswa J sitting as court of first instance).
(a) The appeal is upheld;
(b) The order of the
court below is set aside;
(c) It is declared that
an application in terms of
s 5(4)(a)
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.
JUDGMENT
SNYDERS JA ( Harms DP,
Heher and Tshiqi JJA and R Pillay AJAconcurring)
[1] After the second
appellant, an inspector in terms of the Counterfeit Goods Act 37 of
1997 (‘the Act’) seized without
a warrant suspected
counterfeit goods under the control of the respondents, the
appellants approached the court below for an order
in terms of s
5(4)(a) of the Act, confirming the seizure. The appellants were
unsuccessful in their application and their failure
turned on the
interpretation of the procedural requirements of s 5(4)(a). Leave to
appeal was refused by the court below, but was
subsequently granted
by this court.
[2] Whilst the appeal was
pending the parties settled all aspects of their dispute, including
costs. Notwithstanding the settlement
the appellants pursued the
appeal without any further participation by the respondents. The
appellants advanced two reasons why
they should not fall foul of s
21A(1) of the Supreme Court Act 59 of 1959.
1
First, conflicting
interpretations were given to s 5(4)(a) in two different judgments in
the Pretoria High Court and, second, it
is in the interest of future
action by the appellants in terms of the Act that clarity be obtained
on the correct procedure to
be followed.
2
Those two grounds indeed
justify the exercise of a discretion in terms of s 21A(1) not to
dismiss the appeal on the basis that it
will have no practical effect
or result.
3
[3] The second appellant
was at all material times in the employ of the first appellant as an
inspector for the purposes of the
Act. The second respondent was the
proprietor of the first respondent. The powers of an inspector in
relation to counterfeit goods
are set out in ss 4 and 5. Broadly
speaking, they state that an inspector, who entertains a reasonable
suspicion that an offence
in terms of the Act has been or is being
committed, may obtain a warrant in terms of s 6 to enter and search
premises, collect
evidence, take reasonable steps to terminate the
act of dealing in counterfeit goods, seize goods and evidence, and
question witnesses.
[4] As a result of a
complaint received, the second appellant formed a reasonable
suspicion that the respondents were in violation
of the Act. On the
basis of that suspicion he approached a magistrate on 22 April 2005
and obtained a search and seizure warrant
in terms of s 6. The
warrant authorized him to enter and search the premises of the
respondents and seize ‘screen printing
plates, boxes, empty or
filled that imitates the registered [OMO] trademarks, . . . to such a
degree that they are substantial
identical copies of the registered
trademarks, registered in the name of Unilever PLC. . .’
[5] Whilst searching the
premises of the respondents in terms of the warrant the second
appellant found images, positives and screen
prints bearing SUNLIGHT
and RAJAH trademarks which, according to information available to the
second respondent, were registered
trademarks of Unilever South
Africa Home & Personal Care (Pty) Ltd and Unilever South Africa
Foods (Pty) Ltd respectively.
Upon finding these images the second
appellant was informed by a representative of the latter two
companies that the respondents
were not authorized to produce images
of the SUNLIGHT and RAJAH trademarks. On the strength of this
information he concluded that
‘I thus had a reasonable
suspicion that an offence was being committed in terms of the
Counterfeit Goods Act and
that considering the nature of the
operation by the Respondent, I should act without a warrant in terms
of the Act to terminate
the alleged acts of counterfeiting, and seize
the goods’.
[6] The second
appellant’s decision not to first obtain a warrant was
motivated by the following facts as stated in his own
words:
‘
I could not leave the premises
to approach a magistrate for a warrant because I was the only
inspector available at the scene and
there were no additional
inspectors to secure the goods. It was Friday afternoon at about
16:30 and the chances were slim that
a magistrate would still have
been available at that hour. I am of the opinion that I had
sufficient evidence to proceed without
a warrant and that a warrant
would have been granted by a magistrate in the circumstances. I am
also of the opinion that the delay
that would have ensued by me first
obtaining the warrant would have defeated the object and purpose of
the seizure, and removal
and detention of the evidence.’
[7] The second
appellant’s decision to proceed without first obtaining a
warrant fell within the ambit of s 5(2) which reads:
‘
Subject to subsection (3), an
inspector may, during the day, without a warrant enter upon or enter
any place, premises or vehicle
after having identified himself or
herself, and, in accordance with paragraphs
(a)
to
(f)
of subsection (1), exercise the powers
of seizure, removal, detention, collecting evidence and search
contemplated in section 4(1)
(a)
,
(b)
and
(c)
(except
the power to search any person), as well as the power to take the
steps contemplated in section 4(1)
(d)
,
if –
(a)
the person who is competent
to consent to the entry and to such search, seizure, removal and
detention, gives that consent; or
(b)
the inspector on reasonable
ground[s] believe that -
(i)
the required warrant will
be issued to him or her in terms of section 6 if he or she were to
apply for the warrant; and
(ii)
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.’
4
[8] The second appellant
acted properly within the ambit of s 5(2)(b) and no issue arose
concerning that, but having so acted, he
was obliged to follow the
procedure prescribed in s 5(4)(a):
‘
(4) Notwithstanding the
provisions of subsections (1) and (2)–
(a)
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. . .’
[9] It is the
interpretation of this subsection that was in issue between the
parties in the court below and that remains the issue
before this
court. 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.
[10] When a warrant is
obtained prior to acting in terms of s 5 of the Act, it is to be done
in terms of s 6(1):
‘
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.’
[11] Both ss 6 and
5(4)(a) seek to achieve a control for the existence of reasonable
grounds external to the authority that performs
the acts of search
and seizure. For that reason it is useful to look at the provisions
of the two sections together. The interrelationship
between the two
sections is also evident from the provisions of s 5(2)(b) that
authorizes an inspector to act without a warrant
as long as he or she
has the belief that a warrant will be issued in terms of s 6 if it
was applied for. The only significant difference
between the two
sections is that whereas confirmation of the existence of reasonable
grounds is sought in advance of acts of search
and seizure in terms
of s 6, s 5(4)(a) seeks to ensure that confirmation of the existence
of reasonable grounds be obtained after
the acts of search and
seizure have been completed.
[12] In the context of
the facts of this case it is significant to note that the purpose of
the two sections does not include notice
to any respondent. On the
contrary, the nature and purpose of search and seizure in terms of
the Act demands that no notice be
given. Notice is likely to defeat
the purpose of the warrant when the procedure in terms of s 6 is
followed and in many cases the
identity and whereabouts of potential
respondents are not likely to be known by the time a warrant is
sought or acts of search
and seizure are performed. More often than
not, counterfeit goods are found in a container or warehouse in the
absence of any potential
respondents or knowledge of their
whereabouts.
[13] 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.
[14] Uniform rule 1
defines ‘judge’ as ‘a judge sitting otherwise than
in open court’. This is the first
indication that there is no
difference in procedure between ss 6 and 5(4)(a).
[15] In s 5(4)(a) the
word ‘application’ is used as the manner in which the
inspector is to approach the judge or magistrate.
As s 5(4)(a) does
not refer to a notice of motion, the procedure that is available in
the high court, or a notice, the procedure
that is available in the
magistrate’s court, it suggests that no formal application
procedure in terms of the rules of court
with notice to any
respondent is envisaged.
5
The legislature must have
been alive to the distinction between a judge or magistrate on the
one hand and a court on the other as
well as an application on the
one hand and application on notice of motion on the other, as is
apparent from the provisions of
s 7(4). In terms of s 7(4) a person
prejudiced by a seizure of goods in terms of s 4(1) is entitled to
apply to court for a determination
that the goods seized are not
counterfeit goods and are to be returned to that person. Section 7(4)
expressly prescribes that the
application be one to court on notice
of motion, unlike s 5(4)(a). It is during these proceedings that the
aggrieved party may
attack the legality of the search and seizure
proceedings.
[16] For the reasons
stated the slight difference in wording between ss 6 and 5(4)(a) do
not result in a substantial difference
in procedure. The confirmation
after the search and seizure is also to be sought from and given by a
magistrate or a judge of the
high court as opposed to a court. The
confirmation is to be sought in chambers, on oath or affirmation.
[17] The submission on
behalf of the respondent in the court below that the confirmation in
terms of s 5(4)(a) is to be sought on
notice of motion, issued and
served before the expiry of 10 court days from the date of the
seizure, for the reasons stated above,
should not have been upheld.
The appellants issued an application within the required 10 day
period. Thereafter the obligation
was on the registrar of the court
below to place the application before a judge in chambers for
confirmation. The Act does not
require that the confirmation by the
judge or magistrate is to be obtained within the 10 day period and
for that reason the fact
that it was issued and lodged with the
registrar was sufficient in the circumstances. The appellants were
not required to give
notice to the respondents and that they have
done so outside the prescribed 10 day period is not fatal to their
compliance with
s 5(4)(a).
[18] Although the matter
has been settled between the parties an appropriate order must still
issue. The following order is made:
(a) The appeal is upheld;
(b) The order of the
court below is set aside;
(c) It is declared that
an application in terms of
s 5(4)(a)
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.
_________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
For
appellant: C E Puckrin SC (with him R Michau)
Instructed by Adams &
Adams, Pretoria,
The State Attorney,
Bloemfontein.
For
respondent: No appearance
1
Section
21A(1)
reads: ‘When at the hearing of any civil appeal to the
Appellate Division or any Provincial or Local Division of the
Supreme
Court the issues are of such a nature that the judgment or
order sought will have no practical effect or result, the appeal may
be dismissed on this ground alone’.
2
The
first is the judgment of Poswa J in
Minister
of Trade and Industry v EL Enterprises
(15383/2005)
[2008] ZAGPHC 130
(6 May 2008) and the second a judgment by Legodi J
in
EGL Eagle Global
Logistics (South African Proprietary) Ltd v Eagle Logistics CC
(37053/2007)
[2008] ZAGPHC 160
(6
June 2008).
3
On
the discretion of this court in terms of
s 21A(1)
see
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005
(4) SA 506
(SCA) paras 6 and 7.
4
Subsection
(3) excludes the operation of
s 5(2)
from application to a private
dwelling.
5
Application
procedure in the different courts is to be found in Uniform
Rule 6
and Magistrates courts
rule 55.