While many brand-holders adopt an aggressive approach and pursue criminal action against so-called counterfeiters under the Counterfeit Goods Act, the Criminal Procedure Act provides very useful procedural tools with which to flush out counterfeit kingpins – ironically with the assistance of their own partners in crime, says Adams & Adams Attorneys’ Jan-Harm Swanepoel, in an analysis in Business Day.

He points out that section 105A of the Criminal Procedure Act authorises the state to enter into plea bargains with accused persons. ‘In many cases section 105A is used to enter into plea bargains with accomplices in terms of which they receive lesser sentences, or even avoid imprisonment, in exchange for testimony against co-perpetrators,’ he adds.

Furthermore, securing an accused’s testimony by virtue of plea bargaining in terms of section 105A is preferred to granting them indemnity in terms of section 204 in exchange for their evidence – because section 105A ‘would at least ensure the accused has a criminal record and receives some punishment’. For this reason, entering into plea bargains with counterfeit dealers against prosecution in exchange for their testimony against their suppliers against the importers and manufacturers of the counterfeit goods in question, is ‘the way to go’.

Says Swanepoel: ‘Section 105A obliges prosecutors to afford complainants, or their representatives, the opportunity to make representations regarding the contents of proposed plea agreements and the inclusion of provisions relating to compensation to be paid by the accused.’ He adds that the risks associated with the evidence of such witnesses can be minimised by adducing other objective evidence to support the versions of these witnesses.

Full analysis in Business Day