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[2008] ZAWCHC 213
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Shoprite Checkers (Pty) Ltd v Commissioner of South African Revenue Services and Others (2460/2006) [2008] ZAWCHC 213 (30 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
1460/2006
DATE
: 30
MAY 2008
In
the matter between:
SHOPRITE
CHECKERS (PTY) LTD
Applicant
And
COMMISIONER
OF SOUTH AFRICAN
REVENUE
SERVICES
1
st
Respondent
RUBINA
LORRAINE HOLMAN
2
nd
Respondent
COMMISSIONER
FOR CUSTOMS AND EXCISE
3
rd
Respondent
CROCS
INC 4
th
Respondent
JUDGMENT
(Application
for Leave to Appeal)
ZONDI,
J
:
[1]
This is an application for leave to appeal against my entire
judgment and orders delivered on 5 February 2008. The grounds
upon
which leave is sought can be summarised as follows:
The
alleged non-disclosure of material facts in an
ex
parte
application;
The
magistrate's failure to hear the applicant and not requiring the
presentation of all available facts to him for consideration
prior
to the issue of the warrant;
The
Court's failure to find that the grounds upon which the applicant
sought to oppose the application for the warrant constituted
essential facts upon which the magistrate ought to have considered
before deciding that reasonable existed for the issue of
the
warrant;
The
magistrate had no reasonable grounds for believing that an act of
dealing in counterfeit goods had taken place or was taking
place or
is likely to take place given the material placed before him;
Whether
the applicant infringed any rights of the fourth respondent
contemplated in the Copyright Act 98 of 1 978.
[2]
It is trite law that in an application for leave to appeal the
applicant must show that there are reasonable prospects of
success
on appeal. (See in this regard
Van
Heerden v Conwright & Others
1985(2) SA 342 (T) as well as
Westing
House Brake & Equipment (Ptv) Ltd v Builder Engineering
(Ptv)
Ltd
1986(2) SA 555 (A) at 561)
[3]
The Commissioner did not fail to disclose the material facts to the
magistrate when he made an application for a warrant in
terms of
section 6(1)
of the
Counterfeit Goods Act 37 of 1997
. There was a
dispute of fact between the applicant and the third respondent as to
whether Pillay in seeking a warrant from the
magistrate had
disclosed to him that the applicant was disputing that the goods in
respect of which a warrant was sought were
counterfeit goods.
(Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3)
SA623(A) at 634e - 635c) In accordance with
the
Plascon-Evans
principle, I decided the factual dispute on the respondent's
version.
[4]
Section 6(1)
of the Act does not impose a duty upon a magistrate
considering an application for a warrant to afford the applicant the
opportunity
of being heard. The warrant application is made ex
parte
and
is issued in chambers. That being so, the provision of
section 6(1)
makes no provision for the hearing of the applicant. The magistrate
had sufficient information on oath before him
r
demonstrating
that there were reasonable grounds for believing that an act of
dealing in counterfeit goods had taken place, or
was taking place or
was likely to take place.
[5]
The magistrate's belief was based on the information placed before
him in the form of the affidavit of Erik Olsen. It was
clear from
the affidavits of Olsen and Battiston that the fourth respondent is
the hotder of the intellectual property rights,
which had been
violated by the goods in respect of which the warrant was sought.
There was no evidence that the person from whom
the applicant
obtained the goods had authority to use the fourth respondent's
copyright which subsisted in the drawing of the
shoe.
[6]
Mr
Sholto-Douqlas
referred me to an unreported Transvaal Provincial Division decision
of
Morespon
(Ptv) Ltd v Commissioner for South
African
Revenue
Services & Others
under case number 36853/2006 dated 25 March 2005. In that case
Seriti,
J
set aside the search and seizure warrant which was issued by the
magistrate in the circumstances where a letter setting out the
applicant's defence in terms of section 15(3)A of the Copyright Act
had not been brought to the attention of the magistrate when
a
section 6 application was brought.
This
was held to be a material non-disclosure. Mr
Shotto-Douqlas
sought to use this case as a basis for arguing that there is a
reasonable prospect that another court might come to a different
conclusion. However, that case is distinguishable from the facts of
the present case, in the present case, the person who applied
for a
warrant had advised the magistrate that the applicant was disputing
that the goods were counterfeit goods.
[7]
In the circumstances I am not persuaded that the application for
leave to appeal has reasonable prospects of success and I
therefore
dismiss the application, with costs.
ZONDI,
J