Union européenne

Afrique du Sud

Moyens de faire respecter les DPI

5. The Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) recently laid down, in clear and succinct terms, what an applicant for an Anton Piller order has to establish. This may fairly be referred to as "a common law Anton Piller order". In the Counterfeit Goods Bill, which is currently passing through the South African parliamentary process, relatively elaborate provisions are made for the grant of an Anton Piller order. This, in turn, may fairly be termed "a statutory Anton Piller order". Could the Government of South Africa clarify the following points: - In the light of the availability of a common law Anton Piller order what is the need for a statutory Anton Piller order? - Since the requirements to obtain a common law Anton Piller order appear to be less stringent than a statutory Anton Piller order, would not an applicant in the usual case make an application for a common law Anton Piller order (and not a statutory Anton Piller order)? - Do the requirements of a common law Anton Piller order and the statutory Anton Piller Order comply with Article 50 of the TRIPS Agreement? Please explain.

The South African Courts have traditionally been conservative in their approach to common law Anton Piller orders, and until the recent decision by the Supreme Court of Appeal, differences existed between the approaches followed in the different provincial divisions. The provision of the statutory Anton Piller order within the parameters of the Counterfeit Goods Act brings about certainty in regard to this proceeding in the context of an anti-counterfeiting action, to ensure effective measures to combat the escalating level of counterfeiting activity. In cases which do not fall within the parameters of the Counterfeit Goods Act, an applicant will have to make use of a common law Anton Piller order. In circumstances falling within the parameters of the Counterfeit Goods Act, the applicant can elect to use either the common law or the statutory Anton Piller order. Both the common law and the statutory Anton Piller orders comply substantially with Article 50 of the TRIPS Agreement.