An Evaluative Study of Criminalistics: A Case of South African Counterfeiting and Knock-Off Menace

• Author: Godfrey Thenga
• Position: University of South Africa, Johannesburg, SOUTH AFRICA College of Law, Department of Police Practice
• Pages: 45-60

Center for Open Access in Science  https://www.centerprode.com/ojls.html

Open Journal for Legal Studies, 2021, 4(2), 45-60.

ISSN (Online) 2620-061ф  https://doi.org/10.32591/coas.ojls.0402.01045t

__________________________________________________ _______________________

© Authors. Terms and conditions of Creative Commons Attribution 4.0 Inte rnational (CC BY 4.0) apply.

Correspondence: Godfrey Thenga (PhD, Senior lecturer), University of South Africa, College of Law,

Department of Police Practice, Johannesburg, SOUTH AFRICA. E-ma il: tshabg@unisa.ac.za.

An Evaluative Study of Criminalistics: A Case of

South African Counterfeiting and Knock-Off Menacei

Godfrey Thenga

University of South Africa, Johannesburg, SOUTH AFRICA

College of Law, Department of Police Practice

Received: 16 April 2020  Accepted: 26 May 2020  Published Online: 6 N ovember 2021

Abstract

Counterfeit goods are a health hazard to human life, environment and business. More so as the

goods destroy the viability of legitimate business es across the world. Counterfeit goods are

characterized as a threat to the financial viability of legitimate busin esses and has a dire impact

on the tax revenue o f countries, necessitating its effective and eff icient policing for the financial

wellbeing of countries. If not well managed, counterfeit goods could lead to unemployment,

disinvestment and capital flight in countries. The available evidence reveals that even though

counterfeit goods has dire consequences for the economic wellbeing of countries, its penalties in

most African countries are less severe in comparison to penalties for other crimes. The sight of

counterfeit goods in many places, such as on busy street corners and transportation terminals in

the Southern parts of Africa, attests to its prevalence in the continent. Especially in South Africa

as the country has becom e a transit point for contrabands. Post 1994, South Africa opened its

borders to the world of branded and protected goods and this enabled rogue people to trade in

counterfeit goods. Ef fective policing is hindered by the use of sophisticated skills and expertis e

that leads to counterfeit goods resembling genuine goods. Moreover, in South Africa, the problem

persists despite the promulgation of the Counterfeit Goods Ac t 37 of 1997, thus questioning the

effectiveness of the policing strategies in use to quell the problem.

Keywords: consumer fraud, policing of counterfeit goods, dealing with counterfeit goods,

corruption, money laundering.

1. Introduction

On the African continent, countries are awash with counterfeit and knock-off goods.

South Africa as a thriving economy is not exempted from the counterfeit menace (South African

Institute of Intellectual Property Law, 2015). The streets and shops in the country’s biggest cities

are inundated with traders who, daily, sell counterfeit goods to knowing and unsuspecting

consumers, despite the fact that trading in counterfeit goods is a property crime. Counterfeit

dealing is a crime that, among others, infringes on intellectual property and it is consumer fraud,

as some of the goods are smuggled into the country in violation of the laws. Some of the goods are

registered to be sold only in specific markets and may not be suitable for the other markets into

which they were smuggled. This crime hampers innovation and creativity in all nations (Spilsbury,

2009: 4). Protected goods, which are goods registered by the owner in respective countries, enjoy

a dominant status conferred by the state to prevent exploitation by unscrupulous people who

would want to steal creative and innovative products of others (Staake & Fleisch, 2008: 33). By

law, only legitimate manufacturers should produce and distribute goods, without having to

G. Thenga – An Evaluative Study of Criminalistics: A Case of South African Counte rfeiting…

__________________________________________________ _______________________

46

compete with illegitimate dealers in the market. It is the duty of law enforcement officials in every

country to enforce the law and prevent crime. In South Africa, the South African Police Service

(SAPS) is responsible for enforcing the law and policing crime that occurs within the borders of

the country.

Counterfeit goods manufacturers are located in countries around the world. Often,

manufacturers of counterfeit goods and dealers form part of organized criminal groupings and, to

make matters worse, they make use of unregulated and hazardous materials in producing such

goods. Counterfeit goods are often an imitation of genuine goods that are smuggled into the

country in dubious ways by criminals without the permission of the owners of original goods

(Beauchamp, 1998: 278).

Consumer fraud involves the use of falsehood to misrepresent facts to deceive

consumers. Production of counterfeit goods that resemble genuine goods, and the selling of such

goods purported to be what they are not, with the ultimate goal of making an exorbitant profit,

amounts to consumer fraud (Treadwell, 2011: 176). Criminals who counterfeit goods that are

owned by other people, earn an unlawful income because they had not spent money on conducting

research, developing the goods and procuring quality materials. A study conducted by BASCAP

(2009: i) on the dangers and extent of counterfeit goods, revealed the grievous losses that

counterfeit goods cause governments and the lawful owners of genuine goods to suffer. Counterfeit

goods stall economic growth as taxes are not paid to the tax collector, the South African Revenue

Services in the case of South Africa. Jobs are lost as criminals do not employ many people, nor do

they have research and development teams working in their organizations as opposed to the

genuine goods industry. Innovation suffers because counterfeit products discourage creativity and

slow sector or industry expansions, which lead to mass job creation. Consumers across the world

may suffer injuries. Finally, the legitimate owners of genuine goods become reluctant to invest in

expansion drives and increase their presence in businesses.

Counterfeit goods have not been tested by authoritative and accredited institutions to

determine if the materials used in producing them may be harmful to people and environment.

Even the consumers of counterfeit goods find it difficult to differentiate whether the goods are

genuine or counterfeit goods (Bian & Veloutsou, 2007: 212). Consequently, criminals leverage on

this lag and continue to sell these goods on the street and in shops to consumers in many countries,

including South Africa.

Despite a considerable body of literature on the dangers that counterfeit products pose

to people both nationally and internationally, no research study has yet been conducted on the

policing of counterfeit goods in South Africa and on the African continent. It is against this

background that the article will highlight the extent of the problem in South Africa from a policing

perspective and the issues which complicate the policing of it. Furthermore, this study will suggest

guidelines for the policing of such goods in order to suffocate the trade.

2. Definition of concepts

Counterfeit is the unlawful and intentional misrepresentation of goods that

effectually cause actual or potential prejudice to another (Treadwell, 2011: 176). This is the

imitation of genuine goods by the counterfeiter without permission of the genuine goods holder

and at times passing them off as genuine.

Knock-off is a copy or imitation of the original goods that are presented to

consumers as if they are original, by hiding their true identity.

Trademark is a distinctive sign and/or mark that identifies the goods that are owned

by an enterprise (Ward, 2011: 49). It is a symbol or device used to identify and distinguish goods

manufactured, owned and registered by different businesses.