MK Party members brandish a banner with the face of former ANC and state president, Jacob Zuma. (Photo by Darren Stewart/Gallo Images via Getty Images)
The Pietermaritzburg high court on Monday dismissed the ANC’s legal challenge to the uMkhonto weSizwe (MK) party’s use of the name and logo of its disbanded armed wing, with costs.
The court agreed with the MK party that the ANC had chosen the wrong forum to challenge the dismissal by the electoral court last year of its appeal on the trademark dispute.
It concluded that it had no jurisdiction in the matter.
The court found that there was merit in the MK party’s argument that it could not entertain a dispute that originated out of the processes in terms of the Electoral Commission Act.
The Act, it noted, specifically mandates the electoral court to deal with all electoral matters, in the widest sense.
“Even assuming that the high court had ‘concurrent jurisdiction’ to consider the trade mark dispute as fashioned by the ANC, once the ANC elected to appeal the decision of the IEC [Electoral Commission of South Africa] on 20 September 2023, the dye had been cast.”
The ruling party was therefore duty bound to pursue its case only through the electoral court and no other forum.
“Especially,” the judgment says, “as the gravamen of its complaint fell within the heartland of guaranteed political rights, impacting on the rights and freedoms afforded to citizens to make political choices, to form a political party, to campaign, and to recruit members — all of which would fall within the ambit of ‘electoral matter’ as contemplated in section 20(1) of the Electoral Commission Act.”
The ANC was asking that the MK party be compelled to change its name and logo, and relied on the Trade Marks Act.
But the court found that the relief sought affected the political rights of the MK party and its members and potential voters.
It said the political rights guaranteed in section 19 of the Constitution are and give effect to the founding values in section 1(d), which guarantees universal adult suffrage.
They are also linked to other rights, such as the rights of association and dignity, and importantly, “‘the right to vote, and the exercise of it, is a crucial working part of our democracy’,” it added.
The ANC’s argument was based on a restrictive reading of section 34(3) of the Trade Marks Act, the court said, and took no account of the context in which enforcement it was seeking to enforce it.
Examining the merits of the argument in terms of this, the court said the ANC had failed to prove that the logo used by the MK party on green background would confuse a voter of reasonable intelligence looking at a ballot paper on voting day.
“There can be no confusion, in my view, that will confront a voter in the sanctity of the voting booth, when confronted with the symbols of the ANC and the MKP,” the court said.
It noted that not only the colour of the background was different in the logo used by the MP party and the trademark the ANC registered, but the placement of the spear.
“Accordingly, I conclude that it has not been established that the marks resemble each other so closely that deception or confusion among voters is likely to arise,” the judge said.
Also, the registered mark of the ANC will not, according to information before the court, feature on the ballot sheet in the forthcoming elections.
But even if it were, the court added. “there is enough to distinguish it in the eyes of the average voter so as not to cause deception or confusion”.
The MK party was registered as a political party in early September last year.
The ANC lodged an appeal against the decision of the Electoral Commission of SA (IEC) a fortnight later, on the stated basis that the new party had infringed on both its trademark and its name, ‘People’s Army, an inextricable component of the ANC‘s liberation movement’.
The ANC formally appealed the decision on 24 November, which put it outside of the 14- day period prescribed in section 15(4) of the Electoral Commission Act. Its appeal was dismissed for non-compliance.
The party then turned to the electoral court, which found that it was its “own fault” that it missed the deadline.
The ANC’s spokesman for KwaZulu-Natal, said a court ruling could not alienate the party’s historical legacy, and called the fledgling MK founded by former president Jacob Zuma a party of political impersonators.
“Our democracy allowed a scammer, a Zuma party to register itself with the name that has the history and the heritage of the movement and unfairly benefit from that particular movement but because of technicalities the law allows that. We must enter a debate about that as a society.”
He said the litigation was a matter of principle for the ruling party.