Estados Unidos de América

Sudáfrica

Observancia de los derechos de propiedad intelectual

Medidas provisionales

29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be authorized to grant provisional remedies when there is a "demonstrable risk of evidence being destroyed". Please describe briefly what factors are considered by the competent authorities in determining when there is a "demonstrable risk of evidence being destroyed".

In the context of the granting of a statutory Anton Piller order in terms of Section 11 of the Counterfeit Goods Act, the Court must be satisfied that; (a) the applicant's right to discovery of documents in conventional proceedings is likely to be frustrated, either by reason of the nature of the counterfeit goods or through other circumstances; or (b) should conventional court procedures be followed, the relevant goods or evidence relating to transactions or dealings with the goods is likely to be destroyed or so altered or placed or disposed of as to effectively preclude the applicant of having access thereto. In the context of the granting of a common law Anton Piller order, the applicant must show that there is a real and well-founded apprehension that the relevant evidence will be hidden or destroyed or in some manner spirited away by the time that the matter comes to the stage of discovery in conventional proceedings. See Shoba v OC, Temporary Police Camp, Wagindrift Dam 1995 (4) SA 1(A) at 15, where judgment was given by Chief Justice Corbett.