| (1) | Subject to section 5(4)(b), any statement taken down or other documentary evidence procured by an inspector in the course of exercising any power in terms of section 4(1), may be made available to a complainant at his or her request. The complainant may make copies of or extracts from any such statement or documentary evidence and must return the original statement or document to the inspector. |
| (2) | An inspector may be called as a witness by any party to civil or criminal proceedings concerning counterfeit goods, or by the court, whenever the inspector’s conduct, the exercise or performance of his or her powers or duties in terms of section 4(1), 5, 6, 7 or 9 or the nature of the circumstances in or activities with reference to which those powers or duties were exercised or performed, is in issue or relevant in those proceedings. |
| (3) | In any civil proceedings concerning an act of dealing in counterfeit goods by any person, it will be permissible, if relevant, to present evidence about that person’s conviction on account of an offence founded on the same act of dealing in counterfeit goods. |
(4)
| (a) | A statement in the prescribed form, made under oath or affirmation by an inspector, to the effect that the goods specified under his or her signature in the inventory attached to that statement, are goods seized by him or her from a specified person at a specified place and on a specified date, will, upon production to the court, be admissible in evidence and be sufficient proof of the facts stated therein in any civil or criminal proceedings concerning counterfeit goods or any act of dealing therein, if relevant to those proceedings and if the inventory has been prepared by the inspector, and has been certified to be correct, as required by section 7(1)(a). |
| (b) | If a statement has been produced and handed in as evidence in terms of paragraph (a), the court, in its discretion and notwithstanding the provisions of that paragraph, may order that the inspector who made that statement be directed or subpoenaed to appear before the court to give oral evidence concerning any matter mentioned or dealt with in that statement. |
| (5) | Where the subsistence of an intellectual property right in respect of protected goods or any person’s title to or interest in such intellectual property right is in issue in any civil or criminal proceedings concerning counterfeit goods, the subsistence of, title to or interest in such intellectual property right, where it is alleged— |
| (a) | to encompass the rights in respect of a trade mark as contemplated in paragraph (a) of the definition of ‘‘intellectual property right’’ in section 1(1), may be proved in accordance with the provisions of sections 49, 50 and 51 of the Trade Marks Act, 1993; |
| (b) | to be copyright in a work, may be proved in accordance with the provisions of section 26(12) of the Copyright Act, 1978, which provisions will apply mutatis mutandis; |
| (c) | to be the exclusive right to use a particular mark, conferred by a notice issued under section 15 of the Merchandise Marks Act, 1941, may be proved by producing to the court a copy of the Gazette in which that notice was published, accompanied by a statement under oath or affirmation made by the Minister or any officer in the Department of Trade and Industry designated by the Minister, which is to the effect that such notice has not been withdrawn or amended in its essence. |
However, the provisions of this subsection will not be construed so as to detract from the power of the court, in relation to any such matter or any aspect thereof—
| (i) | to require oral evidence to be given; |
| (ii) | in the case of a High Court, to order that the evidence of a person who resides or is for the time being outside the area of jurisdiction of that Court, be taken by means of interrogatories. |
| (6) | Where any person who conducts business in protected goods featuring, bearing, incorporating or embodying the subject matter of a particular intellectual property right is proved to have been found in possession of suspected counterfeit goods to which the subject matter of the same intellectual property right has been applied— |
| (a) | it will, in any civil proceedings concerning an act of dealing in counterfeit goods founded on that person’s possession of the suspected counterfeit goods, be presumed, until the contrary is proved, that such person was in possession of the latter goods for the purpose of dealing therein if the quantity of those goods is more than that which, in the circumstances, reasonably may be required for his or her private and domestic use; |
| (b) | the same presumption will, in any criminal proceedings arising from that person’s possession of the suspected counterfeit goods, apply mutatis mutandis unless credible evidence in rebuttal of the fact presumed, is tendered. |
