The Minister of Trade and Industry v E L Enterprises

An inspector (second appellant) employed by the first appellant obtained a search and seizure warrant under the Counterfeit Goods Act 37 of 1997 to search the respondents' premises for counterfeit OMO trademarks. During the search on 22 April 2005 at approximately 16:30 on a Friday afternoon, the inspector discovered images, positives and screen prints bearing SUNLIGHT and RAJAH trademarks registered to Unilever companies. The respondents were not authorized to produce these images. The inspector, being the only inspector available on site and unable to leave the premises to obtain a further warrant before magistrates' offices closed, proceeded to seize these additional goods without a warrant pursuant to section 5(2) of the Act. The appellants then sought confirmation of the warrantless seizure from the court under section 5(4)(a) by launching an application on notice of motion within the required 10 court days but only served the application on the respondents after the 10-day period had expired. The High Court (Poswa J) held that the application had not been properly "brought" within the prescribed time period because service was effected late. The parties subsequently settled all aspects of their dispute including costs, but the appellants pursued the appeal to obtain clarity on the correct procedure.

• What is the correct procedural interpretation of section 5(4)(a) of the Counterfeit Goods Act 37 of 1997?
• Does section 5(4)(a) require an application on notice of motion addressed to the court with service on the respondent?
• What does 'brought' mean in the context of section 5(4)(a) - does it require service on respondents within 10 court days?
• Whether the court should dismiss the appeal under section 21A(1) of the Supreme Court Act where the parties had settled but conflicting High Court judgments existed on the procedural issue?
• What is the proper procedure for obtaining confirmation of a warrantless seizure under section 5(4)(a) compared to obtaining a pre-seizure warrant under section 6 of the Act?

The appeal was upheld. The order of the court below (Pretoria High Court per Poswa J) was set aside. The court declared that an application in terms of section 5(4)(a) of the Counterfeit Goods Act 37 of 1997 is not an application on notice of motion addressed to the court which has to be served on the respondent.

An application in terms of section 5(4)(a) of the Counterfeit Goods Act 37 of 1997 for confirmation of acts performed by an inspector without a warrant is not an application on notice of motion addressed to the court that requires service on a respondent. The application is to be brought to a judge or magistrate in chambers (not to a court in open session) and must be issued and lodged with the registrar within 10 court days of the seizure. Service on the affected party is not required. The slight differences in wording between section 5(4)(a) (post-seizure confirmation) and section 6 (pre-seizure warrant) do not result in substantially different procedures; both contemplate ex parte proceedings in chambers to confirm the existence of reasonable grounds for the inspector's actions. This interpretation is supported by: (1) the nature and purpose of search and seizure which demands no prior notice; (2) Uniform Rule 1's definition of 'judge'; (3) the absence of reference to 'notice of motion' in section 5(4)(a); and (4) the express requirement of notice of motion in section 7(4), demonstrating the legislature knew how to require formal notice procedures when intended.

The court noted that in many cases involving counterfeit goods, the identity and whereabouts of potential respondents are not known by the time a warrant is sought or acts of search and seizure are performed, as counterfeit goods are often found in containers or warehouses in the absence of any potential respondents. The court also observed that section 7(4) of the Act provides the mechanism for an aggrieved party to challenge a seizure by applying to court on notice of motion for a determination that goods are not counterfeit and should be returned, and it is during these proceedings that the legality of the search and seizure may be attacked. The court exercised its discretion under section 21A(1) of the Supreme Court Act not to dismiss the appeal on mootness grounds because: (1) conflicting interpretations existed in two different Pretoria High Court judgments; and (2) it was in the interest of future enforcement actions that clarity be obtained on the correct procedure.

This judgment provides authoritative clarification on the procedural requirements for confirming warrantless seizures under the Counterfeit Goods Act 37 of 1997. It resolves conflicting interpretations in the Pretoria High Court regarding section 5(4)(a). The decision is significant for enforcement of intellectual property rights as it clarifies that inspectors can act swiftly to seize suspected counterfeit goods without the burden of formal notice procedures that might defeat the purpose of enforcement. The judgment demonstrates the importance of purposive statutory interpretation, particularly in comparing related provisions within the same statute (sections 5(4)(a), 6, and 7(4)) to determine legislative intent. It also illustrates the Supreme Court of Appeal's willingness to determine moot appeals under section 21A(1) where there is public interest in resolving conflicting lower court decisions and providing guidance for future cases, even where parties have settled their dispute.