Application for confirmation of seizure must be served within 10 days

South Africa
In Minister of Trade and Industry v EL Enterprises (15383/2005 [2008] ZAGPHC 130, May 6 2008), the Transvaal Provincial Division of the High Court has set aside an application for confirmation of a seizure conducted on behalf of Unilever PLC on the grounds that the Department of Trade and Industry had failed to serve the application papers (for confirmation of the seizure) on the respondents within the statutory 10-day period after seizing certain goods without a warrant. The decision is useful in that it clarifies that application papers must be issued and served within the statutory period after the seizure, and not just issued.
Dirk Aspeling, the second applicant, is a trade inspector permanently employed by the Department of Trade and Industry (in the Directorate for Monitoring and Complaints). The first respondent, EL Enterprises, is an unregistered entity which conducts business as a graphic designer and manufacturer of positives for use by printers. The second respondent is the sole proprietor of the first respondent.
On April 21 2005 Aspeling received a complaint from Unilever South African Home and Personal Care (Pty) (Ltd) and Unilever PLC alleging infringement of certain of the OMO trademarks (which are registered in the name of Unilever). In Aspeling's opinion, the information provided created a reasonable suspicion that an offence was being or had been committed in terms of the Counterfeit Goods Act (37/1997). He applied to the Johannesburg Magistrate’s Court for a search warrant, which he obtained.
The search warrant entitled Aspeling to seize certain listed goods that imitated the registered trademarks to such a degree that they were substantially identical copies of the OMO trademarks. During the search and seizure, Aspeling went beyond the warrant and seized goods that were not listed. His reasons for acting beyond the warrant were as follows: 
  • He was the only inspector available at the scene and there were no additional inspectors to secure the goods. It was a Friday afternoon (at approximately 16:30pm) and it was unlikely that the magistrate would still be available. 
  • He was of the opinion that he had sufficient evidence to proceed without a warrant and that a warrant would have been granted by a magistrate in the circumstances.  
  • The delay that would have ensued by his first obtaining a warrant would have defeated the object and purpose of the seizure.
Section 5(2) of the Counterfeit Goods Act allows an inspector to act without a warrant if he or she believes, on reasonable grounds, that:
  • the required warrant would be issued if he or she applied for it; and 
  • the delay that would ensue by first obtaining a warrant would defeat the object of the search and seizure. 
However, Section 5(4)(a) states that: 
"any act performed by an inspector without a warrant must be confirmed by a court having jurisdiction in the area where the act was performed on the application of an inspector brought within 10 days after the day on which the act was performed."
The conduct sought to be confirmed took place on April 22 2005. The application was issued (without being served on the respondents) on May 10 2005 and was served on the respondents on May 11 2005. To have been served within 10 court days of April 22 2005, the application would have had to have been served on May 10 2005.
This case thus turned on the interpretation to be given to the phrase “brought within 10 court days” under Section 5(4)(a) of the act. The respondents argued that Section 5(4)(a) entails service of the application within the 10-day period. The minister of trade submitted that the fact that the application was served on the respondents outside the 10-day period was irrelevant, as the act does not require an application to be issued and served.
The court referred to Commissioner of South African Revenue Service v Shoprite Checkers (Pty) Ltd (Case 9251/2003) and Commissioner of South African Revenue Services v Shoprite Checkers (Pty) Ltd (Case 9444/2003), in which the court held that "where proceedings are brought by… application…, service thereof is not a requirement". The court also referred to Peters v Union and National South British Insurance Co Ltd (1978 (2) SA 58 (D)), where it was held that "in some contexts…, the filing and serving of an application can, and does amount to, the making of an application". Reference was also made to Modise v Incorporated General Insurances Ltd (1985 41 SA 650 (BG)), where it was said that an application is made when it is filed with the registrar and served on the respondent.
In the present case, the court found that by not serving the application papers on the respondents within the 10-day period stipulated in the act, the applicants had failed to bring an application for confirmation of the acts performed by Aspeling. The application was dismissed and the applicants were ordered to pay the costs of the application.
Darren Olivier and Msawenkosi Gaxo, Bowman Gilfillan Inc, London

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