The high court in Durban has criticised the ANC’s failure to timeously oppose the registration of the uMkhonto weSizwe (MK) name and logo before the announcement by former president Jacob Zuma that he would support it.
The court on Monday struck down the governing party’s bid for the MK party to stop using the name and logo of its disbanded liberation-era military wing, manifesting fears within the governing party that the use of the MK name by a new party could lead to voter confusion at the polls next month.
The ANC launched its application against the use of the logo only in January, five months after MK, along with its name and logo, was approved for registration by the Electoral Commission of SA (IEC). ANC secretary-general Fikile Mbalula argued that he first had to consult with the party structures, including the national executive committee (NEC), the party’s highest decision-making body, before launching legal action.
The court found the ANC took no steps to protect its reputation and brand despite knowing that MK party had intentions of contesting the May 29 polls.
The verdict marks the third straight legal setback for the ANC against the MK party ahead of what is slated to be its toughest election yet. Opinion polls show it could lose the governance of Gauteng and KwaZulu-Natal and that its share of the national vote is likely to fall below 50% for the first time.
“It initially elected to pursue the matter through the mechanisms contained in the Electoral Commission Act, only to seemingly abandon that forum after the dismissal of its appeal on November 24 2023,” the judgment reads. “Until mid-December 2023, the ANC did not perceive the MK party as an infringer, even though it appropriated a name synonymous with the history of the ANC and adopted a logo identical or strikingly similar to that of uMkhonto weSizwe; nor did it seek to contest the decision of the IEC by way of appeal or review.”
The high court dismissed with costs the governing party’s application, which sought to stop the MK party from using the name uMkhonto weSizwe and trademark or anything similar to it before the elections, saying its use of the logo constitutes a breach of the Trade Marks Act.
The court found that the MK party’s logo is not an infringement on the trademark legislation and that the ANC and MK logo, which will appear on the election ballot paper alongside the leaders of the respective parties, will not confuse voters, as was argued by the ANC.
“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 judgment reads.
The newly formed party, led by Zuma, can now legally use the name and logo during campaigning for the national and provincial elections.
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.
The ANC said it would appeal the ruling, which could be perceived as a loss of control over its own narrative and heritage as the MK name is closely tied to the ANC’s historical identity and its struggle against apartheid.
“We are arguing the issue of the trademark, not the politics that the judge is talking about. The judge is not a politician, he must get out of politics, we have given him the facts ... We are not arguing MK versus ANC. We are saying ‘MK is ours, here is the trademark’. He doesn’t refer to that in the judgment,” Mbalula said in a briefing on Monday.
“Zuma has now registered a party. He has moved many steps since we suspended him. He is now a leader. He is effectively campaigning against the ANC,” Mbalula said.
In a separate matter, Zuma’s candidacy for parliament is being challenged in the Constitutional Court, with the IEC saying this was to ensure there were no objections to the outcome of the polls, particularly whether they were free and fair.
The IEC applied for an order to declare that Zuma had been convicted of an offence and sentenced to more than 12 months’ imprisonment and so was not eligible to be a member of the National Assembly until five years had elapsed since the completion of his sentence.
Update: April 22 2024
This article has been updated with new information throughout.
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