Picture: THINKSTOCK
Picture: THINKSTOCK

DEALING in counterfeit goods can no longer be regarded as a simple misdemeanour or some "inventive" way of ripping off the "big brands". It has evolved into a major global problem posing significant health and safety risks, not to mention other adverse implications such as tax evasion and job losses.

Counterfeit goods suppliers have developed into well-organised crime syndicates making fortunes from manufacturing and trading in every type of article or substance imaginable, ranging from everyday articles such as clothing to substandard hazardous counterfeit products such as oils and lubricants, in most instances marketed fraudulently as the "real McCoy".

In some cases, these may even have potentially deadly consequences — counterfeit pharmaceuticals and even counterfeit consumables such as baking powder and spices are no longer a strange occurrence in the market place. As a result, many brand-holders adopt an aggressive approach and pursue criminal action against so-called counterfeiters under the Counterfeit Goods Act of 1997.

However, this can become quite expensive, time-consuming and frustrating and can lead to undesirable results if the sources or manufacturers of the illegal goods are never brought to book.

What many brand-holders (or rather complainants) do not realise is that 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.

Section 105A of this act authorises the state to enter into plea bargains (plea and sentence agreements) with accused persons who have legal representation. 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 their testimony against co-perpetrators.

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.

In broad terms, a section 204 witness may be granted full indemnity should he testify for the state against a co-perpetrator and the court deems the testimony to be honest and frank. Provided the presiding officer finds the testimony meets the requirements of the section, a 204 witness would therefore escape all liability for their role in the offence, even if the accused is acquitted during the ensuing trial.

As many brand-holders will attest, the opportunity to pursue the sources or manufacturers of counterfeit goods does not come along often. Therefore, when the opportunity presents itself to pursue criminal charges against a big role player, it makes sense to make use of all available resources to secure a conviction.

Keeping this bigger picture in mind, it follows that entering into plea bargains with, or even indemnifying, counterfeit dealers against prosecution in exchange for their testimony against their suppliers or — even better — against the importers and manufacturers of the counterfeit goods in question, is the way to go.

Although these decisions are solely at the discretion of the prosecutor, the wishes of the relevant intellectual property right holders or brand-holders (the complainants) will usually be taken into account.

In fact, 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.

However, as with almost every criminal trial strategy, a degree of risk is involved when relying on the evidence of an accused to convict co-perpetrators.

High-profile criminal cases such as the Brett Kebble murder trial and the more recent Shrien Dewani trial clearly demonstrated the intricacies and risks of driving a prosecution based on such evidence: in both of these cases the accused were acquitted despite seemingly overwhelming evidence that they were guilty.

In the autobiography that former national director of public prosecutions (NDPP) Vusi Pikoli co-wrote with Mandy Wiener — My Second Initiation: The Memoir of Vusi Pikoli — the advocate remarked: "The greatest criticism of my tenure as NDPP remains focused on the decision to grant indemnity to criminals in exchange for their testimony as per section 105A of the Criminal Procedure Act, which allows for plea bargains, and section 204 of that same act, which allows full immunity from prosecution.

"Plea bargains have always been part and parcel of our law. Section 105A agreements happen almost on a daily basis … and are nothing new. The benefit of this approach is to speed up matters and to ensure the co-operation of suspects in order to prosecute others who are guilty. Section 204 immunity arrangements are generally used in cases of organised crime where law-enforcement authorities are planning to bust crime syndicates.

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"Immunity is international best practice in matters of organised crime … because those who are involved in these crimes are seldom willing to talk. There is considerable reluctance to expose one another, simply because the one who corrupts is as guilty as the one who has been corrupted. Therefore it is very difficult to accumulate evidence, and at times the tactic of offering immunity must be implemented."

Although brand-holders and the state may have no other option but to rely on section 204 and section 105A witnesses, the risks associated with the evidence of such witnesses can be minimised by adducing other objective evidence to support the versions of these witnesses. It must be borne in mind that the threshold to overcome in convicting an accused in a criminal case is "beyond a reasonable doubt" and not "beyond the shadow of a doubt".

Many brand-holders elect to appoint private investigators and representatives to investigate and identify suspected dealers in counterfeit goods. Their knowledge of, and care taken in, collecting and preserving evidence might well prove to be crucial in convicting perpetrators and saving their brands from dilution and destruction.

• Swanepoel is a senior associate in the anticounterfeiting department of Adams & Adams Attorneys