IMPORTANT SECTIONS IN THE CGA with reference to case law

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)