By Lehlohonolo Lehana.
Judgment has been reserved in the African National Congress (ANC) application to seek leave to appeal the ruling that dismissed (with costs) its bid to prevent the newly-formed uMkhonto weSizwe (MK) political party’s use of the MK’s name and logo.
The court dismissed its application earlier this year, finding that it had no jurisdiction to entertain the matter.
The ANC argues that a party cannot challenge a decision of the Commission to the Electoral Court, as prescribed by the Electoral Commission Act, in a matter in which the Commission itself has no jurisdiction or power.
In April, the court ruled that the ANC’s argument about voter confusion does not hold.
The ANC has accused the MK party of theft, arguing that the registered name and trademarked logo of the Jacob Zuma-led political formation bears resemblance to the emblem of the ruling party’s former military wing, uMkhonto weSizwe, which was dissolved in 1993.
The party then approached the Durban High Court with an application for leave to appeal, arguing that a different court might reach a different conclusion.
Zuma turned up at the Durban high court on Thursday in support of his MK Party in its legal battle against the ANC.
However, the MK party’s legal representative, Advocate Dali Mpofu, argued that the ANC should accept the ruling, as the logos are not the same.
“They cannot, with a straight face, come before your lordship and say the use of the logo, the name, and all those things is unauthorised because it was authorised yesterday by the court of law,” Mpofu told the court.
“You are the one who scrambled the egg. You cannot now want to unscramble it.”
In the application considered by the high court, the party relied on the Trademarks Act to show MK Party was misrepresenting itself as being connected or associated with the ANC by using the ANC’s well-known logo and name uMkhonto we Sizwe.
“The grounds upon which the ANC contends the court erred in reaching the conclusions which it sets out include section 34(1)(c) of the Trademarks Act, where the court, in its judgment, found the mark used by the MK Party was similar to that registered in the name of the ANC. This is all that section 34(1)(c) requires on this issue.”
The ANC said the section also does not require any further deception or confusion, yet this appears to be the primary basis upon which the cause of action was dismissed.
The ANC’s legal representative,Gavin Marriott, countered by saying the use of the logo by the MK party in future elections would erode the goodwill that the ANC enjoys through the name uMkhonto weSizwe.
“Advocate Marriott pointed out that no determination was made regarding the ownership of the MK trademark.
However, he contended that the judgment was still “clearly appealable” since the case was not struck from the roll.
“Your lordship said that was not a matter that could be decided on paper, but your lordship nonetheless dismissed the passing off claim.
“So, the fact that your lordship didn’t consider that particular issue does not mean that it is not appealable,” the advocate said.
Marriott addressed the MK Party’s argument that the case was moot now that the May 29 election had passed, insisting that the trademark infringement was ongoing.
The advocate highlighted that future events, such as elections and party conferences, will involve the use of the MK logo and name, which will “erode the goodwill” enjoyed by the ANC.
“The conduct about which we complain is an ongoing one… it is the continued use of uMkhonto weSizwe from now and into the future.
“So, it is not correct that the matter has become moot because the 2024 elections have occurred.
“It is also not correct that our case was limited to the 2024 elections. It is a case based on a continuing wrong, which we say merits the attention of an appeal court,” Marriot continued.
Marriott stated that the ANC believed another court would likely reach a different conclusion.
“As far as we are aware, it is the first that a high court has found that it does not have the jurisdiction to determine a trademark infringement and passing off of a case.
“That has never happened before and with respect on that basis alone; we submit there is at least a reasonable prospect that another court would differ with you on that.”
The ANC previously lost its bid to deregister the MK party after the Electoral Court found that the Electoral Commission of South Africa (IEC) acted within the prescribes of the law when approving the political formation.
MK Party is now the third biggest political party in the country, following the 2024 National and Provincial elections, ANC had 41.9%, down from 57.5% in the last 2019 election.