Industry awaits outcome of amendment to counterfeit goods ruling

Members of the freight industry are still in a hot sweat about being unjustly included as liable parties in cases falling under the Counterfeit Goods Act (CGA). A much-desired amendment to the act was assembled last year by the Maritime Law Association (MLA) – a motivation that clearly addressed the plight of the innocent carriers, ship’s agents and clearing and forwarding (c&f) agents. This was included in a submission driven by the shipping industry in general, and is currently in the government pipeline awaiting discussion and ratification as an amendment to the CGA – which was last amended in 2001. The problem for the industry, according to Andrew Robinson, director of lawyers Deneys Reitz and chairman of the MLA, is that the present definitions of importer and exporter in the act “are draconian in their scope”. In relation to counterfeit goods, those persons who ordinarily conduct business as a carrier, shipper, ship’s agent, shipping agent, clearing agent, forwarding agent or similar businesses, are all included under the importer and exporter headings. “The definitions fix a vicarious liability upon persons who have no interest in the goods in question and who, in general terms, ordinarily have no way of knowing whether the goods in question imported into or exported from SA are counterfeit as defined in the act,” Robinson added. The industry is in a sweat because there have already been a number of cases held in SA which included innocent carriers and C&F agents in the charges. The amendment to the act seeks to exclude these parties, and the proposal has been submitted to the authorities, so that the appropriate legal change to the act can be made.