ANC tells court MK party trademark case not over with elections

The African National Congress (ANC) has argued that the conclusion of the 2024 elections does not resolve its trademark dispute with the uMkhonto weSizwe (MK) party.

The KwaZulu-Natal (KZN) High Court in Durban on Thursday heard the ANC’s leave to appeal the application of a previous judgment in favour of the MK party.

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.

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The high court, on 22 April, ruled that it lacked jurisdiction regarding the ANC’s urgent application and dismissed the case with costs.

The court, however, did not make an order on the ownership of the name.

The ANC immediately decided to appeal the judgment.

ANC’s case not moot

During court proceedings, Advocate Gavin Marriott, counsel for the ANC, 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.

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

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.

Watch the case below:

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.”

High court jurisdiction

Judge Mahendra Chetty clarified that his ruling pertained to jurisdiction, indicating that the Electoral Court was the appropriate venue for the case.

 “This was an election matter that fell within the purview of the Electoral Court,” the judge said.

Chetty noted that the ANC was effectively asking him to split the case.

However, Marriott argued that this was not an election-related case, emphasising that the ANC had maintained from the outset that its application was an “intellectual property matter”.

The lawyer acknowledged that the ANC had raised the trademark issue in the Electoral Court in a different case, but asserted that this did not prevent the party from approaching the high court.

“The fact that it was raised in that forum is not the basis upon which to deny the ANC its right to approach this court for relief.”

READ MORE: MK party ‘riding on the coat-tails’ of the ANC’s history and legacy’

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.

Meanwhile, Marriott further argued that Chetty erred in his judgment on jurisdiction.

“No, my lord… you can’t, with respect, deny or refuse to exercise your jurisdiction, which you admit you have, simply because you think it would be better placed elsewhere.

“Once your lordship accepts that you have jurisdiction to determine, you are required to exercise it,” he added.