| (1) |
An inspector acting on the authority of and in accordance with a warrant issued under section 6, may at any reasonable time— |
| (a) |
enter upon or enter, and inspect, any place, premises or vehicle at, on or in which goods that are reasonably suspected of being counterfeit goods, are to be found or on reasonable grounds are suspected to be or to be manufactured, produced or made, and search such place, premises or vehicle and any person thereat, thereon or therein, for such goods and for any other evidence of the alleged or suspected act of dealing in counterfeit goods. For the purposes of entering, inspecting and searching such a vehicle, an inspector who is a police official or who is assisted by a police official may stop the vehicle, if necessary by force, wherever found, including on any public road or at any other public place; |
| (b) |
take the steps that may be reasonably necessary to terminate the manufacturing, production or making of counterfeit goods, or any other act of dealing in counterfeit goods being performed, at, on or in such place, premises or vehicle, and to prevent the recurrence of any such act in future. Those steps may include any of the steps contemplated in paragraphs (c), (d) and (e) but do not include the destruction or alienation of the relevant goods unless authorised by the court in terms of this Act; |
| (c) |
seize and detain, and, where applicable, remove for detention, all the goods in question found at, on or in such place, premises or vehicle; |
| (d) |
seal or seal off any place, premises or vehicle at, on or in which— |
| (i) |
the goods in question are found, or are manufactured, produced or made, either wholly or in part; |
| (ii) |
any trade mark, or any exclusive mark contemplated in paragraph (c) of the definition of "counterfeiting" in section 1(1), or any work which is the subject matter of copyright, is applied to those goods; |
| (iii) |
the packaging for those goods is prepared; or |
| (iv) |
the packaging of those goods is undertaken; |
| (e) |
seize and detain, and, where applicable, remove for detention, any tools which may be used in the manufacturing, production, making or packaging of those goods or applying a trade mark or that exclusive mark or such a work to them; and, |
| (f) |
if he or she reasonably suspects that a person at, on or in such place, premises or vehicle may furnish any information with reference to any act of dealing in counterfeit goods— |
| (i) |
question that person and take down a statement from him or her; |
| (ii) |
demand and procure from that person any book, document, article, item or object which in any way may be relevant to the nature, quantity, location, source or destination of the goods in question, or the identity and address of anyone involved or ostensibly involved as a supplier, manufacturer, producer, maker, distributor, wholesaler, retailer, importer, exporter or forwarding agent of, or other dealer in, the goods in question. |
| (2) |
Subject to subsection (3), an inspector may, during the day, without a warrant enter upon or enter any place, premises or vehicle after having identified himself or herself, and, in accordance with paragraphs (a) to (f) of subsection (1), exercise the powers of seizure, removal, detention, collecting evidence and search contemplated in section 4(1)(a), (b) and (c) (except the power to search any person), as well as the power to take the steps contemplated in section 4(1)(d), if— |
| (a) |
the person who is competent to consent to the entry and to such search, seizure, removal and detention, gives that consent; or |
| (b) |
the inspector on reasonable ground believes that— |
| (i) |
the required warrant will be issued to him or her in terms of section 6 if he or she were to apply for the warrant; and |
| (ii) |
the delay that would ensue by first obtaining the warrant would defeat the object or purpose of the entry, search, seizure, removal, detention, collection of evidence and other steps. |
| (3) |
Subsection (2)(b) does not serve as authority for, and may not be applied for the purposes of, entering and searching any private dwelling, nor for conducting such seizure and removal, the collection of evidence and the taking of the said other steps therein. |
| (4) |
Notwithstanding the provisions of subsections (1) and (2)— |
| (a) |
any acts performed by an inspector by virtue of subsection (2) must be confirmed by a magistrate or a judge of the High Court having jurisdiction in the area where the acts were performed, on the application of the inspector brought within 10 court days of the day on which those acts were performed; |
[Subsection (4)(a) amended by section 2(a) of the Counterfeit Goods Amendment Act, 2001.]
| (b) |
no answer given or statement made by any person to an inspector exercising his or her powers in terms of paragraph (f)(i) of subsection (1) or given or made to any inspector exercising like powers by virtue of subsection (2), will, if self-incriminating, be admissible as evidence against that person in criminal proceedings instituted in any court against him or her, except in criminal proceedings where that person is tried for an offence contemplated in section 18(d)(ii), and then only to the extent that such answer or statement is relevant to prove the offence charged. |
| (4A) |
If the magistrate or judge contemplated in subsection (4)(a) does not confirm the acts performed by the inspector, the inspector must return any goods seized forthwith and make good any damage caused. |
|
[Subsection (4A) inserted by section 2(b) of the Counterfeit Goods Amendment Act, 2001.] |
| (5) |
The provisions of section 6(4) regarding the manner in which a search must be conducted, and section 6(5)(b), (6), (7), (8) and (9), will apply mutatis mutandis to an inspector acting by virtue of subsection (2) of this section. |
Housing Development Agency Act, 2008
