A win for Zuma's MK party as judge rejects delayed ANC bid to block use of military wing trademark

The KwaZulu-Natal High Court has dismissed with costs the ANC’s bid to prohibit Jacob Zuma’s MK party from using the names and symbols of its disbanded anti-apartheid military wing.

The judgment handed down at the Durban court on Monday morning sets out that the use of the “uMkhonto we Sizwe” name and symbols can be used by the recently-established MK party which is led by former president Jacob Zuma.

“In the result, on the merits, I am not satisfied that the ANC has made out a case for the injunctive or consequential relief sought. It failed to establish a clear right for final relief, either to the name or to the use of its registered mark…

“In light of the conclusions I have reached on the issues of lack of urgency, absence of jurisdiction, and non-suiting the ANC in this court, as well as finding on the merits of the matter, the application falls to be dismissed,” the judgment reads.

Urgency 

The judgment states that the ANC only started thinking about the consequences of the use of the name and symbols when Zuma officially announced his support for the MK party.

The ANC first submitted an appeal to the Independent Electoral Committee of SA (IEC) regarding the use of the name and logo of their disbanded military wing last year but was unsuccessful.

“Can one assume, given the lack of speed on the part of the ANC, that there was no reputational risk to its brand for all this time until the utterances and announcement by Mr Zuma in the latter half of December 2023? If so, this undermines the ANC contentions, first as to urgency, and second as to the risk and the absence of any alternative to the injunctive relief it seeks,” it reads.

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The ANC had been aware that the MK party’s application for registration was rejected on 4 August 2023. It also knew that the party was eventually registered on 17 September, but did not file on time.

The judgment says the ANC’s delayed application was “self-created” as the onus was on party secretary general Fikile Mbalula to ensure that they appeal within the allocated time.

“...There would have been no conceivable reason why Mr Mbalula, as the Secretary-General, could not have acted more swiftly and with greater promptitude after the decision on 24 November 2023, and why it was necessary for him to first discuss the matter internally with other decision-making structures.

“I say this because the delegation of authority relied on by him [Mbalula] for bringing the present application was granted by the National Executive Committee ('’the NEC’) of the ANC almost a year earlier, on 28 January 2023. That being the case, there would be no reason for him to discuss the matter with any of the structures before pursuing legal proceedings,” it reads.

MK party supporters protest outside the Electoral Court on 19 March, 2024 in Bloemfontein, South Africa. This comes after the ANC challenged the registration of the MK party by the Electoral Commission of SA. (Photo: Gallo Images/Volksblad/Mlungisi Louw)

Jurisdiction

The judgment states that the ANC’s appeal to the courts to ultimately bar the MKP from using its name and  logo relies on the Trade Marks Act as a vehicle for this relief which requires the matter to be taken to the Electoral Court.

“The relief it seeks directly impacts on the political rights of the MKP and its members and potential voters. The political rights in section 19 are interlinked and give effect to our founding values in section 1(d). They are also linked to other rights, such as the rights of association33 and dignity,34 and importantly, ‘the right to vote, and the exercise of it, is a crucial working part of our democracy’...

“For all of the reasons set out above, I agree with the MKP that the ANC’s right of recourse was an appeal or review to the Electoral Court to challenge the dismissal of its appeal lodged on 20 September 2023. The ANC chose the wrong forum to assert its rights. This court has no jurisdiction,” it reads.

MK party members outside Johannesburg High Court in Johannesburg after the ANC accused the MK Party of unlawfully supplementing a defective application after its initial one was rejected. 26 March 2024. (Photo: Gallo Images/Fani Mahuntsi)

Merits 

The judgment explains that If the ANC prohibited the MK party from using the symbols and name they could have done so by reviewing the decision of the IEC.

“These rights, as I have alluded to earlier, were authorised by the IEC in pursuance of, and in giving effect to, the provisions in section 19 of the Constitution. They cannot merely be wished away or invoked to the prejudice of the MKP.

“In my view, the rights vesting in the MKP, remain in place. They have not been set aside by a competent court and this, in my view, constitutes a complete answer to the case of the ANC as it denudes it of its cause of action. On this ground alone, the application should be dismissed.”

The ruling follows an earlier one by the Electoral Court, which dismissed the ANC’s bid to have the MK party deregistered as a political party.

Read more in Daily Maverick: First blood — ANC fails in bid to deregister Zuma’s MK party before Electoral Court

The MK party also won its bid to have Zuma appear on their Parliamentary list. DM