‘ANC’s clever lawyering backfired’: Mpofu says appeal on MK party trademark is ‘hopeless’

Advocate Dali Mpofu says the African National Congress’ (ANC) appeal application relating to the uMkhonto weSizwe (MK) party trademark won’t succeed.

The ANC is seeking leave to appeal an earlier judgment, which favoured the MK party, to the Supreme Court of Appeal (SCA).

The party’s legal efforts to challenge the MK party over the use of the registered name and trademarked logo – resembling the emblem of the organisation’s former military wing, uMkhonto weSizwe – were unsuccessful.

On 22 April, the KwaZulu-Natal (KZN) High Court in Durban ruled that it lacked jurisdiction and dismissed the ANC’s urgent application with costs, with the party announcing its intention to appeal the decision just hours after the judgment was delivered.

‘Hopeless’ ANC appeal

On Thursday, Mpofu, arguing for the MK party, described the ANC’s appeal application as “hopeless”.

The advocate informed the high court that the case was not eligible for appeal and pointed out that the ANC had neglected to address the trademark issue after discovering the MK party’s copyright infringement.

 “Your lordship did not just say the matter is not urgent in a one-liner.

“Actually, your lordship went into great lengths to explain why the ANC, for months and months on end, did nothing to prosecute its so-called trademarked infringement and only did so after the December 16 announcement by former president [Jacob] Zuma,” he told the court.

The MK party was officially registered as a political party by the Electoral Commission of South Africa (IEC) in September 2023 and was announced by Zuma at a press conference in December.

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Mpofu also addressed the issue of the high court ruling that it did not have jurisdiction over the trademark case and said the matter belonged to the Electoral Court instead.

He pointed out that the ANC chose to handle the deregistration of the MK party and the trademark infringement cases separately.

The Electoral Court dismissed the deregistration case on 26 March, while the high court heard the ANC’s application regarding the trademark issue the following day.

“They are the ones who decided to split the babies so to speak. It’s not even a secret.

“Literally on the same day, the 9th of January, they decided to issue two matters… one in the Electoral, one in this court.

“Both affidavits [were] signed by Mr [Fikile] Mbalula on the same day. That might have been for tactical reasons, but it has backfired because both courts, in a way, found they do not have jurisdiction,” Mpofu argued.

Watch the case below:

ANC’s ‘clever lawyering’

Mpofu further stated that the ANC’s strategy to split the two cases was “clever lawyering”.

“They understood that to come here for the trademark infringement, one of the issues [argued] is going to be unauthorised use [of the logo and name] and this, actually, is a shortcut to this whole case.

“So they thought, let’s first [pursue] the deregistration [case] and that the deregistration would then deprive us of the defence that the use is authorised.

“Unfortunately, they failed because the deregistration case was dismissed before we came to your lordship.”

READ MORE: Will ANC be happy if MK party is called ‘uMkhonto ka Zuma’? – Mpofu

In addition, Mpofu agreed with Judge Mahendra Chetty’s assertion that the ANC’s trademark case would have been on “a much stronger footing” if the party had emerged victorious in the Electoral Court with the deregistration matter.

 “Once they lost that case, they cannot, with a straight face, come before your lordship and say the use of the logo and the name is unauthorised because it has just been authorised yesterday by a court of law of five judges,” the advocate continued.

He added: “You are the one that scrambled the egg, you can’t now want to unscramble it.”

Chetty reserved the judgment.

“I intend to reflect on the arguments and I’ll hand down the decision in due course. Parties [involved] will be advised. Judgment is reserved in the matter.”