Shoprite Checkers (Pty) Ltd v Commissioner of South African Revenue Services and Others (2460/2006) [2008] ZAWCHC 213 (30 May 2008)

IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION) CASE NO: 1460/2006 DATE: 30 MAY 2008 In the matter between: SHOPRITE CHECKERS (PTY) LTD Applicant And COMMISIONER OF SOUTH AFRICAN REVENUE SERVICES 1st Respondent RUBINA LORRAINE HOLMAN 2nd Respondent COMMISSIONER FOR CUSTOMS AND EXCISE 3rd Respondent CROCS INC 4th Respondent JUDGMENT (Application for Leave to Appeal) ZONDI, J: [1] This is an application for leave to appeal against my entire judgment and orders delivered on 5 February 2008. The grounds upon which leave is sought can be summarised as follows:

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 1460/2006

DATE: 30 MAY 2008

In the matter between:

SHOPRITE CHECKERS (PTY) LTD Applicant

And

COMMISIONER OF SOUTH AFRICAN

REVENUE SERVICES 1st Respondent

RUBINA LORRAINE HOLMAN 2nd Respondent

COMMISSIONER FOR CUSTOMS AND EXCISE 3rd Respondent

CROCS INC 4th Respondent

JUDGMENT

(Application for Leave to Appeal)

ZONDI, J:

[1] This is an application for leave to appeal against my entire judgment and orders delivered on 5 February 2008. The grounds upon which leave is sought can be summarised as follows:

The alleged non-disclosure of material facts in an ex parte application;

The magistrate's failure to hear the applicant and not requiring the presentation of all available facts to him for consideration prior to the issue of the warrant;

The Court's failure to find that the grounds upon which the applicant sought to oppose the application for the warrant constituted

essential facts upon which the magistrate ought to have considered before deciding that reasonable existed for the issue of the warrant;

The magistrate had no reasonable grounds for believing that an act of dealing in counterfeit goods had taken place or was taking place or is likely to take place given the material placed before him;

Whether the applicant infringed any rights of the fourth respondent contemplated in the Copyright Act 98 of 1 978. [2] It is trite law that in an application for leave to appeal the applicant must show that there are reasonable prospects of success on appeal. (See in this regard Van Heerden v Conwright & Others 1985(2) SA 342 (T) as well as Westing House Brake & Equipment (Ptv) Ltd v Builder Engineering (Ptv) Ltd 1986(2) SA 555 (A) at 561) [3] The Commissioner did not fail to disclose the material facts to the magistrate when he made an application for a warrant in terms of section 6(1) of the Counterfeit Goods Act 37 of 1997. There was a dispute of fact between the applicant and the third respondent as to whether Pillay in seeking a warrant from the magistrate had disclosed to him that the applicant was disputing that the goods in respect of which a warrant was sought were counterfeit goods. (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA623(A) at 634e - 635c) In accordance with the Plascon-Evans principle, I decided the factual dispute on the respondent's version. [4] Section 6(1) of the Act does not impose a duty upon a magistrate considering an application for a warrant to afford the applicant the opportunity of being heard. The warrant application is made ex parte and is issued in chambers. That being so, the provision of section 6(1) makes no provision for the hearing of the applicant. The magistrate had sufficient information on oath before himr demonstrating that there were reasonable grounds for believing that an act of dealing in counterfeit goods had taken place, or was taking place or was likely to take place. [5] The magistrate's belief was based on the information placed before him in the form of the affidavit of Erik Olsen. It was clear from the affidavits of Olsen and Battiston that the fourth respondent is the hotder of the intellectual property rights, which had been violated by the goods in respect of which the warrant was sought. There was no evidence that the person from whom the applicant obtained the goods had authority to use the fourth respondent's copyright which subsisted in the drawing of the shoe.

The alleged non-disclosure of material facts in an ex parte application;

The magistrate's failure to hear the applicant and not requiring the presentation of all available facts to him for consideration prior to the issue of the warrant;

The Court's failure to find that the grounds upon which the applicant sought to oppose the application for the warrant constituted

essential facts upon which the magistrate ought to have considered before deciding that reasonable existed for the issue of the warrant;

The magistrate had no reasonable grounds for believing that an act of dealing in counterfeit goods had taken place or was taking place or is likely to take place given the material placed before him;

Whether the applicant infringed any rights of the fourth respondent contemplated in the Copyright Act 98 of 1 978.

[2] It is trite law that in an application for leave to appeal the applicant must show that there are reasonable prospects of success on appeal. (See in this regard Van Heerden v Conwright & Others 1985(2) SA 342 (T) as well as Westing House Brake & Equipment (Ptv) Ltd v Builder Engineering (Ptv) Ltd 1986(2) SA 555 (A) at 561)

[3] The Commissioner did not fail to disclose the material facts to the magistrate when he made an application for a warrant in terms of section 6(1) of the Counterfeit Goods Act 37 of 1997. There was a dispute of fact between the applicant and the third respondent as to whether Pillay in seeking a warrant from the magistrate had disclosed to him that the applicant was disputing that the goods in respect of which a warrant was sought were counterfeit goods. (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA623(A) at 634e - 635c) In accordance with the Plascon-Evans principle, I decided the factual dispute on the respondent's version.

[4] Section 6(1) of the Act does not impose a duty upon a magistrate considering an application for a warrant to afford the applicant the opportunity of being heard. The warrant application is made ex parte and is issued in chambers. That being so, the provision of section 6(1) makes no provision for the hearing of the applicant. The magistrate had sufficient information on oath before himr demonstrating that there were reasonable grounds for believing that an act of dealing in counterfeit goods had taken place, or was taking place or was likely to take place.

[5] The magistrate's belief was based on the information placed before him in the form of the affidavit of Erik Olsen. It was clear from the affidavits of Olsen and Battiston that the fourth respondent is the hotder of the intellectual property rights, which had been violated by the goods in respect of which the warrant was sought. There was no evidence that the person from whom the applicant obtained the goods had authority to use the fourth respondent's copyright which subsisted in the drawing of the shoe.

[6] Mr Sholto-Douqlas referred me to an unreported Transvaal Provincial Division decision of Morespon (Ptv) Ltd v Commissioner for South African Revenue Services & Others under case number 36853/2006 dated 25 March 2005. In that case Seriti, J set aside the search and seizure warrant which was issued by the magistrate in the circumstances where a letter setting out the

applicant's defence in terms of section 15(3)A of the Copyright Act had not been brought to the attention of the magistrate when a section 6 application was brought. This was held to be a material non-disclosure. Mr Shotto-Douqlas sought to use this case as a basis for arguing that there is a reasonable prospect that another court might come to a different

conclusion. However, that case is distinguishable from the facts of the present case, in the present case, the person who applied for a warrant had advised the magistrate that the applicant was disputing that the goods were counterfeit goods. [7] In the circumstances I am not persuaded that the application for leave to appeal has reasonable prospects of success and I therefore dismiss the application, with costs. ZONDI, J

[6] Mr Sholto-Douqlas referred me to an unreported Transvaal Provincial Division decision of Morespon (Ptv) Ltd v Commissioner for South African Revenue Services & Others under case number 36853/2006 dated 25 March 2005. In that case Seriti, J set aside the search and seizure warrant which was issued by the magistrate in the circumstances where a letter setting out the

applicant's defence in terms of section 15(3)A of the Copyright Act had not been brought to the attention of the magistrate when a section 6 application was brought.

This was held to be a material non-disclosure. Mr Shotto-Douqlas sought to use this case as a basis for arguing that there is a reasonable prospect that another court might come to a different

conclusion. However, that case is distinguishable from the facts of the present case, in the present case, the person who applied for a warrant had advised the magistrate that the applicant was disputing that the goods were counterfeit goods.

[7] In the circumstances I am not persuaded that the application for leave to appeal has reasonable prospects of success and I therefore dismiss the application, with costs.

ZONDI, J