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so. 1s324
Act SO. 37.1997
GOVERNMENT GAZEll_E. 1 OCTOBER 1997
COUNTERFEIT GOODS ACT, 1997
or is likely to take place, may, without prejudice to any other remedy that he or she may
ha~e in law, apply ex parte to a judge in chambers for an order—
(a) directing the sheriff or another person designated by the court (hereafter
referred to as a designated person) to enter upon or enter any specified place
or premises accompanied by such other persons as the court may specify (if
any) and there to search for, and, if found, seize and remove. such documents.
records or other material as the court may specify and any such goods, alleged
to be counterfeit goods, as maybe so specified (hereafter referred to as subject
goods), that are at, on or in such place or premises, and to attach such
documents, records, material and goods;
(b) directing the respondent to point out to the sheriff or designated person all
subject goods and to disclose and make available to him or her all documents
and material that are relevant in order to determine whether the subject goods
in question are counterfeit goods or are relevant to any transactions or
dealings in counterfeit goods at, on or in the relevant place or premises or
elsewhere, and to permit the sheriff or designated person to attach such subject
goods, as well as such documents and material (hereafter jointly referred to as
ancillary materials) and remove them for detention in safe custody;
(c) restraining the respondent from—
(i) interfering with the state of the subject goods or ancillary materials
during the search, seizure, attachment or removal;
(ii) carrying out or continuing with the act of dealing in counterfeit goods
that gave rise to the application;
(d) =wting such further or alternative relief as the court considers appropriate.
(~ J An application in terms of subsection (1 ) will be heard in camera unless the court
is satisfied that the attendance of the proceedings by members of the public or any class
or ~~oup of such members will not cause the applicant to suffer any prejudice or to be
prejudiced when seeking to protect or enforce his or her relevant intellectual property
righL 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 comection 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 shel-iff 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 pedente life 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
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