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IMPORTANT SECTIONS IN THE CGA with reference to case law

This article discusses the important sections in the Consumer Goods Act, including the process of lodging a complaint, issuing notices, and the use of intrusive remedies. It also highlights relevant case law in relation to these sections.

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IMPORTANT SECTIONS IN THE CGA with reference to case law

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  1. IMPORTANT SECTIONS IN THE CGAwith reference to case law by Mohamed Khader

  2. IMPORTANT SECTIONS IN CGA Contents Complaint and allegations Section 7(1)(d) notice Section 9 notices Sections 5(3) and 5(4) Intrusive Remedies- Checks and balances introduced in the Act Relevant case law

  3. IMPORTANT SECTIONS IN CGA Complaint & allegations • Filed by “complainant” • - by way of allegations in an affidavit • Allegations in affidavit • - Complainant’s title or interest • See POLO judgment • - Information about brand holder • - Existence of IP right (prevent abuse of the Act) • - Infringement of IP right (see proviso to Section 1) • - Expert analysis and comparison (must be more than mere • infringement- see POLO) • - Address of suspect • - Undertaking to assist in identifying • - Request to obtain warrant & execute

  4. IMPORTANT SECTIONS IN CGA Complaint & allegations • Inspector must be reasonably satisfied • - Complainant entitled to lay complaint • - Goods are protected goods • - IP right exists • - The suspicion is reasonable in circumstances • Unreported judgment of the matter LA Group Limited, Polo Management (Pty) Limited v D & • J Meltz (Pty) Limited and others (TPD) (Case no. 2672/2004).

  5. IMPORTANT SECTIONS IN CGA Section 7(1)(d) Notice • Notice must be given after seizure • IMMEDIATELY (See CADAC judgment) • Must be given by Inspector to complainant & suspect • To suspect – inform of action taken & address of depot • To complainant - inform of action taken, address of depot and right to lay criminal charge against suspect not later than 3 days after date of notice

  6. A IMPORTANT SECTIONS IN CGA Other notices and actions required • Criminal charge laid not later than 3 days after date of Written Seizure Notice (SN) • Written Notice within 10 working days after date of SN by Public Prosecutor to Suspect of intention to prosecute [s 9(2)(a)(i)], or • Written Notice within 10 working days after date of SN by Complainant to Suspect of intention to institute civil proceedings [s 9(2)(a)(ii)] • Suspect charged by Prosecutor within 10 court days after date of Notice of intention to prosecute [s 9(2)(b)] • Civil proceedings instituted against Suspect within 10 court days after date of civil intention Notice [s 9(2)(b)]

  7. IMPORTANT SECTIONS IN CGA Release of goods • When goods must be released: • - On instruction of Inspector • - Upon order of competent court • When Inspector must release goods: • - No criminal charge laid within 3 days [s 9(1)(b)] • - No written notice given by prosecutor within 10 working • days[s 9(2)(a)(i)] • - No written notice given by complainant within 10 working • days [s 9(2)(a)(ii)] • - Suspect not charged within 10 court days of written notice • [s 9(2)(b)] • -Civil proceedings not instituted within 10 court days of • written notice [s 9(2)(b)] • - On instruction of complainant & no criminal prosecution • [s 9(2)(c)]

  8. IMPORTANT SECTIONS IN CGA Other important provisions • Section 5(4) • Section 5(3) • Section 16 • Section 10

  9. IMPORTANT SECTIONS IN CGA Instrusive remedies • Intrusive remedies available to proprietors of a trade mark - such remedies would have to be constitutionally justifiable. • Constant use of the word “reasonable” • All relevant information must be placed before Inspector and decision maker- if not, decision cannot be reasonable and treated as void • “prima facie” could never mean that relevant facts not brought to the attention of Inspector and judicial officer • LA Group Limited, Polo Management (Pty) Limited v D & J Meltz (Pty) Limited and others (TPD) (Case no. 2672/2004).

  10. IMPORTANT SECTIONS IN CGA Case law • An application for a warrant in terms of the CGA is similar to the one • that exists where a party approaches a court on a ex-parte basis. • Shlesinger –v- Shlesinger 1979(4)SA 342(W) at 348 • Cadac (Pty) Limited v Weber Stephen Products Company and others • in the Witwatersrand Local Division under case no. 04/30677

  11. IMPORTANT SECTIONS IN CGA Case law • A GAP in the law • The Commissioner for the South African Revenue Services and others v Sterling Auto Distributors CC Case A1796/04 (TPD)

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