exercising any power in terms of section 4 (1), may be made available
to a complainant at his or her request. The complainant may make
copies of or extracts from any such statement or documentary
evidence and must return the original statement or document to the
inspector.
(2)
An inspector may be called as a witness by any party to civil or
criminal proceedings concerning counterfeit goods, or by the court,
whenever the inspector's conduct, the exercise or performance of his
or her powers or duties in terms of section 4 (1), 5, 6, 7 or 9 or the
nature of the circumstances in or activities with reference to which
those powers or duties were exercised or performed, is in issue or
relevant in those proceedings.
(3)
In any civil proceedings concerning an act of dealing in counterfeit
goods by any person, it will be permissible, if relevant, to present
evidence about that person's conviction on account of an offence
founded on the same act of dealing in counterfeit goods.
(4)
(a)
A statement in the prescribed form, made under oath or
affirmation by an inspector, to the effect that the goods
specified under his or her signature in the inventory attached to
that statement, are goods seized by him or her from a
specified person at a specified place and on a specified date,
will, upon production to the court, be admissible in evidence
and be sufficient proof of the facts stated therein in any civil or
criminal proceedings concerning counterfeit goods or any act
of dealing therein, if relevant to those proceedings and if the
inventory has been prepared by the inspector, and has been
certified to be correct, as required by section 7 (1) (a).
(b)
If a statement has been produced and handed in as evidence
in terms of paragraph (a), the court, in its discretion and
notwithstanding the provisions of that paragraph, may order
that the inspector who made that statement be directed or
subpoenaed to appear before the court to give oral evidence
concerning any matter mentioned or dealt with in that
statement.
(5)
Where the subsistence of an intellectual property right in respect of
protected goods or any person's title to or interest in such intellectual
property right is in issue in any civil or criminal proceedings
concerning counterfeit goods, the subsistence of, title to or interest in
such intellectual property right, where it is alleged(a)
to encompass the rights in respect of a trade mark as
contemplated in paragraph (a) of the definition of 'intellectual
property right' in section 1 (1), may be proved in accordance
with the provisions of sections 49, 50 and 51 of the Trade
Marks Act, 1993;
(b)
to be copyright in a work, may be proved in accordance with
the provisions of section 26 (12) of the Copyright Act, 1978,
which provisions will apply mutatis mutandis;