The Supreme Court of Appeal (SCA) lacks the right, power or competence to reverse the Electoral Commission’s (IEC) decision that the MK party cannot be stripped of its name and logo by the ANC, the opposition party’s court papers says.
The ANC lodged the appeal after the high court dismissed its case last year saying the party should have approached the electoral court to undo the registration of the MK party.
The ANC argued the MK party caused voter confusion when it opted to use the name and logo similar to its disbanded military wing.
“To put it bluntly, where the relevant administrative body [IEC] has determined that the conduct will not cause voter confusion, the court cannot hold otherwise without first having set aside the administrative decision,” the papers read.
“Nor can the high court or this court be effectively used to adjudicate, via the backdoor, the decision of the Electoral Commission. The ordinary courts lack the right, power or competence to do so.”
The ANC in its legal challenge did not appeal the IEC’s decision but rather lodged the application against the MK party accusing it of contravening the trademark act.
Advocate Dali Mpofu, representing the MK party, said in such circumstances “it can hardly be said that the ANC had a clear right to the interdictory relief it is seeking in the present proceedings”.
The ANC, represented by Ka-Mbonane Cooper attorneys, anchored its appeal under the Trade Marks Act.
It contended it did not take the case to the Electoral Court because the court would have focused on whether the MK party name and logo was similar to that of another party and not necessarily considered similarities to the disbanded military wing.
“The Electoral Commission Act is concerned with whether the proposed name, symbol or abbreviated name of the applicant political party is confusingly similar to the name, mark or abbreviated name of a party that is already registered as a political party,” the ANC court papers read.
“If it is understood that the essence of this case is a battle between the statutory rights contained in the Trade Marks Act and the common law rights of passing off, on the one hand versus the political rights of [MK party], as enshrined in the section 19 of the bill of rights, then it should be clear that there can only be one winner, namely the bill of rights,” the MK party said.
The MK said this was because of the theory of the hierarchy of rights as well as the implications of section 39(2) of the constitution.
The bill of rights section 39 (2) reads: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”
It said the ANC’s application was bound to fail because it was “flawed”.
“The approach advanced by the ANC in this appeal is also flawed in that it resembles the approach which was adopted by the SCA in Laugh it Off [a previous case] and which was correctly criticised by the Constitutional Court.”
Both parties have filed court papers for the appeal. The SCA is yet to set a date for the hearing.
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