Please see the reply to question 38 above.

The relevant provision of Section 15 of the Counterfeit Goods Act provides of the owner of an intellectual property right to apply to the Commissioner for Customs and Excise to seize and detain counterfeit goods. The Commissioner is obliged by this section to give written notification to the applicant within a reasonable period of time, indicating whether the application has been granted or refused. The remarks concerning the determination of a reasonable period as set out in the answer to question 45 below have reference.

Section 7(4) of the Counterfeit Goods Act provides: "(a) Any person prejudiced by a seizure of goods in terms of Section 4(1), may at any time apply to the Court on notice of motion for a determination that the seized goods are not counterfeit goods and for an order that they be returned to him or her. "(b) The Court may grant or refuse the relief applied for and make such order as it deems just and appropriate in the circumstances, including an order as to the payment of damages and costs, if applicable. "(c) If deemed just and appropriate in the circumstances by a court that has refused the order sought, it may order, where those goods have been seized pursuant to a complaint laid in terms of Section 3(1) that the complainant furnishes security to the applicant in respect of those goods in an amount and manner determined by the Court." Section 15(7) further provides: "The customs authorities will not be obliged to act in terms of subsection (4) unless the owner of the intellectual property rights, the subject-matter of which is alleged to be goods, furnishes to the Commissioner security in the manner and amount that the Commissioner may require to indemnify the customs authorities and their members against any liability that may be incurred pursuant to the seizure and detention of goods or anything done in relation to goods when acting or purportedly acting under this section and to cover any expenses that may be incurred in effecting the seizure and detention of the goods."

The term "intellectual property right", to which reference is made above, means the rights in respect of a trademark conferred by the Trade Marks Act, 1993, the copyright in any work in terms of the Copyright Act, 1978, or an exclusive right of use in relation to goods conferred by a notice published in terms of Section 15 of the Merchandise Marks Act. This meaning of the term "intellectual property" is narrower than the normal meaning given to the term. "Intellectual property" normally embraces in addition patents and designs. For the purposes of the Act, however, these two forms of intellectual property are not in contention.

There are no legislative time-limits other than that written notice must be given by an inspector to the person from whom counterfeit goods are seized, informing such person of the action taken by the inspector and of the address of the counterfeit goods depot where the goods are kept Section 7(1)(d) of the Counterfeit Goods Act 1997 (Act No. 37 of 1997) provides. In terms of South African common law notice must be given within a reasonable period of time and it is within the discretion of a court before which a matter is heard, upon consideration of the facts and circumstances of each case to determine whether or not the compliance with such time-periods is reasonable or not. "7(1) An inspector who, in exercising his or her powers in terms of Section 4(1) has seized any suspect counterfeit goods, must: (d) by written notice inform the following persons of the action taken by the inspector in terms of Section 4(1) and of the address of the counterfeit goods depot where the seized goods are kept: (i) The person whom those goods were seized; and (ii) also: (aa) the complainant, where the inspector exercised his or her powers in terms of Section 4(1) pursuant to a complaint laid in terms of Section 3(1); or (bb) any person who, in relation to those goods, qualifies in terms of Section 3(1) to be a complainant, but who had not yet so laid a complaint at the time when the inspector exercised those powers on his or her own initiative as contemplated in Section 3(4)."

The Courts which would have jurisdiction would be the High Court and the Magistrates Courts. The value of the goods forming the subject-matter of any action before such Court would generally determine which Court would have jurisdiction to hear the matter.

Where Court action is not taken within the prescribed 3 or 10-day period, counterfeit goods which have been seized by an inspector must be released. Where infringement proceedings have been instituted by an applicant, and the applicants claim has been dismissed by the Court, the Court, on the application of the erstwhile respondent or any other interested person claiming to be entitled to the goods, may order that such goods be released, respectively, to the erstwhile respondent or such interested person who has proved his or her entitlement thereto. The normal process of the Courts may be utilized to review or modify an order. Section 4 of the Counterfeit Goods Act, 1997 refers in this regard.

Section 17(1) of the Counterfeit Goods Act provides: "Any person suffering damage or loss caused by the wrongful seizure, removal or detention of goods alleged to be counterfeit goods, or by any action contemplated in section 7(1)(a), (b) or (c) or (2) wrongfully taken by an inspector with reliance on that section read with section 4(a), or caused during or pursuant to the seizure, removal or detention of such goods in terms of this Act, will be entitled to claim compensation for that damage or loss which claim, subject to subsection (2), will be against the complainant and not against the State, the inspector or the person in charge of the counterfeit goods depot where those goods are or were detained."

Section 8 of the Counterfeit Goods Act provides: "(1) Goods that have been seized in terms of Section 4(1) must be stored and kept in safe custody at a counterfeit goods depot until the person in charge of the depot: (a) is ordered by a competent Court in terms of this Act to return, release, destroy or otherwise dispose of those goods as specified in the order; or (b) is directed by the inspector concerned, in the circumstances provided for in subsections (1)(b) or (2)(a),(b) or (c) of Section 9, to release those goods to the suspect. "(2) Goods seized in terms of Section 4(1) will be available for inspection by the complainant, or as the case may be prospective complainant (if any) the suspect and any other interested person at the counterfeit goods depot on any working day during normal office hours. "(3) The person in charge of the counterfeit goods depot, on the request of the complainant or prospective complainant (as the case may be) or the suspect, must make the relevant seized goods available for testing or analysis by or on behalf of any such complainant or the suspect if the person so in charge, having taken into account the nature of such seized goods, the nature of the tests or analyses to be conducted, and the competence and suitability of the person by whom the tests or analyses are to be conducted, is satisfied that a request in that regard is reasonable. "(4) The person in charge of a counterfeit goods depot who is not willing to allow seized goods under his or her custody to be made available to the suspect for testing or analysis by any person or by a particular person, must forthwith refer the matter to the complainant or prospective complainant (as the case may be) who must either confirm or reverse that decision within 48 hours. "(5)(a) Where any such complainant has confirmed the decision not to allow the seized goods to be made available to the suspect for testing or analysis, that decision must be conveyed in writing to the suspect who may apply to the Court for an order rescinding the decision and allowing those goods to be made so available (b) The Court will grant the application if it finds the decision to be unreasonable in the circumstances." Seized goods to be released if criminal investigation or criminal or civil proceedings not contemplated against suspect.

Section 10(1)(d) of the Counterfeit Goods Act provides: "… that the accused or the defendant or respondent (as the case may be) discloses the source from which those goods, if found to be counterfeit goods, have been obtained, as well as the identity of the persons involved or ostensibly involved in the importation, exportation, manufacture, production or making and distribution of the counterfeit goods and in the channels of distribution of those goods."

Section 3(4) of the Counterfeit Goods Act provides: "The preceding provisions of this section do not preclude an inspector from taking any appropriate steps in terms of Section 4(1) on his or her own initiative in relation to any act or conduct believed or suspected to be an act of dealing in counterfeit goods, provided the requirements of that section are met." The affected areas of intellectual property are trademarks and copyright.

Section 20(1) of the Counterfeit Goods Act provides: "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."

(a) Section 20(1) of the Counterfeit Goods Act provides for the Court to order the destruction or disposal of the goods outside the stream of commerce. (b) The destruction or disposal of the goods is usually left to the discretion of the successful applicant.

The South African courts do recognize the de minimis principle. The legislature has left it to the Courts to determine what constitutes a small quantity which is negligible.

The lower/Magistrate Courts and the High Court have jurisdiction in respect of criminal acts involving infringement of intellectual property rights. Criminal procedures and penalties are available in the case of copyright infringement. Section 27 of the Copyright Act reads as follows: "27(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright: (a) makes for sale or hire; (b) sells or lets for hire or by way of trade offers or exposes for sale or hire; (c) by way of trade exhibits in public; (d) imports into the Republic otherwise than for his private or domestic use; (e) distributes for purposes of trade; or (f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringed copies of the work, shall be guilty of an offence. "(2) Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence. "(3) Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence. "(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such broadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence. "(5) Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence. "(6) A person convicted of an offence under this section shall be liable: (a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates; (b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates." Any inspector, i.e. any person so appointed in terms of the Counterfeit Goods Act; a police official; Commissioner of Customs and Excise may initiate criminal proceedings. Any of these officers may act on their own initiative as well as in response to a complaint from a person entitled to lay such a complaint. However, where an officer has acted of his own initiative, he must procure a complainant otherwise the goods must be released. In terms of the Counterfeit Goods Act, private persons do have standing to initiate criminal proceedings. The Act grants such right to any person having an interest in the protected goods, either as an owner/licensee of the intellectual property rights; importer; exporter/distributor and any authorized agent or attorney of such person. Conviction on a charge of criminal copyright infringement can lead to the imposition of both imprisonment and monetary fines. In the case of a first offence, the Copyright Act imposes a maximum prison sentence of three years or a penalty of R 5,000.00, or both for each infringing article; in the case of a subsequent conviction these maxima are increased to five years imprisonment and R 10,000.00 per infringing article.

Please see the reply to question 55 above.

Please see the reply to question 55 above.

Please see the reply to question 55 above.

Statistical data on the aspects requested is not available in collated format.

Statistical data on the aspects requested is not available in collated format.