The Commissioner for the South African Revenue Service and Others v Moresport (Pty) Ltd and Others

Crocs Inc, the holder of copyright and trademark rights in Crocs footwear, applied to the Commissioner for SARS under the Counterfeit Goods Act 37 of 1997 for the seizure and detention of suspected counterfeit goods. A shipment of 5 015 pairs of beach sandals imported by Moresport (Pty) Ltd was detained by a SARS customs officer after inspection suggested that the goods were replicas of Crocs shoes. An ex parte application was made to a magistrate, who issued a warrant authorising seizure and continued detention of the goods. Prior to the application, Moresport had sent a letter disputing Crocs’ entitlement to protection under the Act and asserting that it had a defence to the seizure, but this letter was not disclosed to the magistrate. Moresport successfully applied in the North Gauteng High Court to have the warrant set aside on the basis of material non-disclosure. SARS, the customs officer, and Crocs appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the North Gauteng High Court was set aside and substituted with an order dismissing the application to set aside the warrant, with costs.

The case clarifies the scope of the duty of disclosure in ex parte applications under the Counterfeit Goods Act and confirms that failure to disclose a respondent’s alleged defence does not automatically invalidate a warrant. It is significant for SARS officials and intellectual property rights holders, as it affirms the practical operation of seizure and detention mechanisms aimed at preventing counterfeit goods from entering commerce.