19 July 2009

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In September 2006, the second respondent issued a warrant in terms of section 6(1) of the Counterfeit Goods Act 37 of 1997. The warrant authorised the seizure, removal, detention and collection of 5 015 pairs of beach sandals incorporating and embodying a copyright design to which Crocs Inc was the copyright holder. Moresport successfully brought an application in the high court for an order setting aside the warrant, leading to the present appeal.

Background

Moresport (first respondent) had imported the consignment of shoes from Canada. A SARS official detained the consignment upon realising that the shoes were copies of those in respect of which the Crocs Inc (third appellant) held the copyright.

In a letter to Crocs Inc, SARS disputed the Crocs Inc right to seek protection in terms of the Act, and stated that SARS had a defence to the continued seizure of the goods. Nevertheless, SARS obtained a warrant from Magistrate Samuel Maku NO (second respondent) in chambers. The letter from the Moresport was not disclosed to the magistrate when the ex parte application was made.

The court found that the defence raised by Moresport in the letter was relevant and material and should have been disclosed to the magistrate. The learned judge consequently found that this failure was such that it rendered the warrant susceptible to be set aside.



Held that the courts have frowned upon the failure by applicants in ex parte applications to disclose relevant and material facts and the failure to disclose that the respondent claims to have a defence. The importance of such disclosure is linked to the fact that at that stage the judge is not required to adjudicate on the dispute on whether the goods are indeed counterfeit or not but merely to make a decision on whether there are reasonable grounds for believing that an act of dealing in counterfeit goods has taken place. At that stage of the proceedings the customs officer need only satisfy the judge that a prima facie case exists, and is not required to prove on a preponderance of possibilities that the seized goods are indeed counterfeit.

Finding that the court a quo erred in not following the above approach, the court upheld the appeal.



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