34
NO.
18324
Act So. 37.1997
GOVERNMENT G,4ZE_t_t_E. I oCTC)BER 1997
COUNTERFEIT GOODS ACT, 1997
or with imprisonment for a period that may not exceed five years, or with both
such a fine and such term of imprisonment.
(2) Any person convicted of an offence referred to in section 18, will be punishable
with a fine or imprisonment for a period that may not exceed six months.
(3) (a) A court that has convicted a person of an offence contemplated in section 2(2)
mus~ when considering which penalty to impose, amongst others take into account any
risk to human or animal life, health or safety or danger to property (whether movable or
immovable) that may arise from the presence or use of the counterfeit goods in question.
(b) Wltbout detracting from the discretion that a court in criminal proceedings has
with regard to sentencing, a court that has convicted any person of an offence referred to
in section 2(2) may take into account, in mitigation of sentence, any evidence to the
effect that such person, fully, truthfully and to the best of his or her ability had disclosed
to an inspector who acted against him or her in terms of section 4(1) or to a member of
the South African Police Service who investigated that offence, all information and
particulars available to that person in relation to any one or more, or all, of the following
matters (whichever may have been applicable in the circumstances):
(i) me source from which the counterfeit goods involved in the commission of
the offence, were obtained;
(ii) tie identity of the persons involved in the importation, exportation,
manufacture, production or making of those counterfeit goods;
(iii) the identity an~ if reasonably demanded, the addresses or whereabouts of the
persons involved in the distribution of those goods;
(iv) the channels for the distribution of those goods.
(4) (a) The Minister may from time to time by notice in the Gazette increase the
amounts of the fines mentioned in paragraphs (a) and (b) of subsection (1).
(b) That notice must be laid on the table in the National Assembly, for its
consideration and approval, within 14 days after the date on which it is published in the
Ga:efie, if the National Assembly is then in session, or, if it is not then in session, within
14 days of the commencement of its next session.
5
10
15
20
25
Orders permissible following conviction of person of offence contemplated in 30
section 2(2)
20. (1) Subject to section 10, the court having convicted a person of an offence
contemplated in section 2(2) may declare the counterfeit goods in question to be
forfeited to the State or order that those goods and their packaging, and, where
applicable. any tools that were used by or on behalf of the convicted person for the
manufacturing. production or making of those or any other counterfeit goods or for the
unlawful application to goods of the subject matter of any intellectual property right, be
destroyed.
(~) AISY pemon who submits any counterfeit goods purchased by him or her (hereafter
called the ag~tieved person), to an inspector, together with proof of the price that was
paid for those goods, will be entitled to receive payment of a sum of money equivalent
to three times the amount of that Dnce, in the following circumstances:
(a) The person who had sol~ those counterfeit go~ds must have been convicted of
an offence referred to in section 2(2) founded on the sale of those goods.
Alternatively, an order, against the seller, must have been made in terms of
section 10( 1)(a) directing that those goods be delivered up to the owner of the
intellectual property right, the subject matter of which was unlawfully applied
to those goods, or up to a complainant deriving his or her title from that owner.
(b) The aggrieved person must have co-operated fully in the prosecution of the
seller for that offence.
(c) \\lten the court having so convicted the seller of those goods or having made
an order in terms of section 10(1)(a), has also issued an order awarding that
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