Criminal complaints procedure

The following criminal complaints procedure may be followed, when a prohibited act is
committed or is likely to be committed:

• any person with an interest in the protected goods who reasonably suspects that a counterfeiting offence is being, has been, or is likely to be committed, may lay a complaint with an “inspector”, who may be an official appointed by the Minister of Trade and Industry, a police official holding the rank of sergeant or higher, or the Commissioner for Customs and Excise;
• a complainant must furnish the inspector with sufficient information that a prohibited act is being performed or is likely to be performed;
• if the inspector is satisfied that the complainant is entitled to lodge the complaint, that an intellectual property right subsists in protected goods and that the suspicion on which the complaint is founded, is reasonable, he may take appropriate steps to put a stop to the counterfeiting activity;
• the inspector must first obtain a warrant from a judge of the High Court or a magistrate in chambers. In certain prescribed circumstances, an inspector may proceed without a warrant;
• once an inspector has a warrant, he or she may enter any place, premises or vehicle to:

- seize, detain and/or remove any counterfeit goods;
- collect evidence relating to the counterfeiting activities;
- conduct any searches reasonably necessary;
- seal off any place, premises or vehicle where counterfeiting activities have taken or are taking place;
- seize, detain, and/or remove any tools used in the counterfeiting activities;
- question persons and take down statements;
- procure relevant books, documents and materials;
- take reasonable steps to terminate the counterfeiting activities.

• seized goods are then, where possible, removed to a counterfeit goods depot, which is a place designated as such by the Minister;
• the complainant has three days after being notified by the inspector that the goods have been seized to lay a criminal charge, failing which the seized goods must be released;
• the seized goods must also be released if the State does not prosecute the offender or if the complainant does not institute civil proceedings within a certain period of time;
• the inspector or complainant, as the case may be, must apply to court for the confirmation of any seizure, detention and removal of counterfeit goods and any other steps taken in relation thereto by the inspector within 10 days, failing which the seizure, detention, removal or steps will cease to have any effect.
• in any criminal or civil proceedings the court may order that the seized goods be delivered up to the owner of the intellectual property right or to the complainant and that the identity be disclosed of any persons involved in the manufacture, importation or distribution of the counterfeit goods. Generally, goods which have been delivered up may not be released again into commerce or exported.