Minister of Trade and Industry and Another v E L Enterprises and Another (193/10) [2010] ZASCA 149; 2011 (1) SA 581 (SCA) (29 November 2010)

Minister of Trade and Industry and Another v E L Enterprises and Another (193/10) [2010] ZASCA 149; 2011 (1) SA 581 (SCA) (29 November 2010)

The Supreme Court of Appeal held that section 5(4)(a) of the Counterfeit Goods Act does not require an application for confirmation of acts performed without a warrant to be brought on notice of motion or served on the respondent within 10 court days. The Act distinguishes between applications to a judge or magistrate and applications to a court on notice of motion, and only requires the inspector to lodge the application for confirmation within the prescribed period. The obligation to give notice to the respondent arises only where the Act expressly provides for it, as in section 7(4). The fact that the application was issued and lodged with the registrar within the required period was...

Citation
[2010] ZASCA 149
Parties
Appellant: Minister of Trade and Industry; Appellant: Dirk Aspeling; Respondent: E L Enterprises; Respondent: Elgin Brookstein
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2010
Case Number
193/10
Procedural Posture
Civil Appeal / Appeal From High Court (pretoria)
Outcome
Appeal upheld; order of the court below set aside; declaration issued regarding the application procedure under section 5(4)(a) of the Counterfeit Goods Act.
Judges
Harms, Heher, Snyders, Tshiqi, R Pillay
Legal Topics
Counterfeit Goods Act, Search and Seizure, Application Procedure, Confirmation of Seizure
Intellectual Property Civil Procedure Counterfeit Goods Act Search and Seizure Application Procedure Confirmation of Seizure

Case Brief

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Parties

Minister of Trade and Industry

Appellant

Dirk Aspeling

Appellant

E L Enterprises

Respondent

Elgin Brookstein

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (pretoria)

Legal Issues

  1. 1 Whether an application for confirmation of acts performed under section 5(2) of the Counterfeit Goods Act 37 of 1997 must be brought on notice of motion and served on the respondent within 10 court days.
  2. 2 Whether the failure to serve the application on the respondent within the prescribed period is fatal to compliance with section 5(4)(a).

Ratio Decidendi

The Supreme Court of Appeal held that section 5(4)(a) of the Counterfeit Goods Act does not require an application for confirmation of acts performed without a warrant to be brought on notice of motion or served on the respondent within 10 court days. The Act distinguishes between applications to a judge or magistrate and applications to a court on notice of motion, and only requires the inspector to lodge the application for confirmation within the prescribed period. The obligation to give notice to the respondent arises only where the Act expressly provides for it, as in section 7(4). The fact that the application was issued and lodged with the registrar within the required period was...

Court Disposition

Appeal upheld; order of the court below set aside; declaration issued regarding the application procedure under section 5(4)(a) of the Counterfeit Goods Act.

Orders

  • The appeal is upheld.
  • The order of the court below is set aside.