right, and that such attendance, should the court order the relief
sought, will not impair or detract from the efficacy of the order or the
execution thereof.
(3)
The court will not grant an application brought in terms of subsection
(1) unless it considers that the applicant has a prima facie claim
against the respondent for the infringement of an intellectual property
right and that(a)
the applicant's right to discovery of documents in any
proceedings to be instituted by him or her is likely to be
frustrated, either by reason of the nature of the suspected
counterfeit goods in relation to which the application is made or
due to other circumstances; or
(b)
should the normal court procedure be followed or
implemented, the goods relevant to the issues in those
proceedings, or evidence in connection with transactions or
dealings with the latter goods, are likely to be destroyed or to
be so altered or placed or be otherwise disposed of in such
manner as to effectively preclude the applicant from having
access to the relevant goods.
(4)
A court hearing an application so brought, may order that the relief
applied for, be granted, subject to the terms and conditions specified
in the order, or that relief be refused, or may make any other order
that it deems just and appropriate in the circumstances.
(5)
For the purposes of subsection (4), the court may(a)
order that the sheriff or designated person may rely upon the
assistance of knowledgeable persons, specified in the order, in
identifying the subject goods and ancillary materials;
(b)
order the applicant to furnish security to the respondent in an
appropriate amount equal to a specified percentage of the
value of the goods attached;
(c)
issue an order restraining the respondent pendente lite from
infringing the applicant's intellectual property right;
(d)
issue a rule nisi calling upon the respondent to show cause
before or on a specified day (which must fall on a date within
20 court days of the granting of the rule nisi) why an interdict
restraining the respondent from infringing the applicant's
intellectual property right and any order granting the applicant
further relief, including an order directing the delivery of the
subject goods up to the applicant, should not be granted or
confirmed;
(e)
order that the applicant, should he or she wish to institute
proceedings against the respondent for the infringement of the
applicant's intellectual property right, must do so not later than
the date specified in the order.