ANC commissioner on Judicial Service Commission corners judge on MK logo ruling

The ANC’s Kenny Mmoiemang, the chief whip of the National Council of Provinces, on Monday pressed KwaZulu-Natal Judge Mahendra Chetty on his ruling denying the party an interdict barring the uMkhonto weSizwe (MK) party from using the warrior and spear as its logo.

The question came up in Chetty’s interview with the Judicial Service Commission (JSC) for a position on the supreme court of appeal.

Chetty dismissed the application by the ANC in April, a month before the May elections where the MK party surged to the position of third biggest in the country. He held that the application rightly belonged in the electoral court.

Chetty further found that the ANC had failed to establish a clear right for relief regarding either the name uMkhonto we Sizwe or the use of the logo.

He could not conclude that the MK party was likely to gain unfair advantage from the use of a symbol imbued with the reputation of the ANC or that it would probably lead a voter to conclude that there was a link between it and the ANC. 

This was particularly so because, in its campaign, the MK party had cast itself as an alternative to the ANC.

“There can be no confusion, in my view, that will confront a voter in the sanctity of the voting booth, when confronted with the symbols of the ANC and the MKP,” Chetty said.

Mmoiemang put it to Chetty on Monday that the MK party continued to appropriate an emblem that was used by the ANC as its own since the early 1960s and asked whether he would not have arrived at a different ruling had he heeded the so-called first principle.

“In the judgment, you say that when dealing with the merits, apart from the distinctive green background, on observation, the registered mark of the ANC and that used by the MKP are similar although a very careful eye will notice a difference in the height in which the spear is held by the warrior.”

He added that the first user principle dictated that another party could not use the same trademark to use its “good or service”.

“In this instance, the MK continues to represent the MK as their product.”

Mmoiemang said Chetty’s argument was that even if one had failed to register a trademark, the infringement resided, in terms of the first user principle, by the fact that this “logo, the MK, was used by the ANC since 1961”.

“Don’t you think had you applied the first user principle you would have come to a different conclusion?”

Chetty replied: “Possibly, I accept that. It wasn’t argued on that basis though. The contention by the applicants was that the mark had been used by the ANC for a number of years and that the respondent, being the MK party, had no prior history of use of that mark and therefore was seeking to essentially ride on the coattails of the ANC, but I accept the point that you raise.”

The ANC’s case was complicated by the fact that Legacy Projects had, in 2014, acquired exclusive rights to the symbol associated with its armed wing for a period of 10 years. 

But, in September last year, two weeks after the Electoral Commission of South Africa registered MK as a political party, the ANC entered into an agreement with Legacy Projects to acquire the rights. 

In arguing for leave to appeal before Chetty, the party’s counsel had also argued that the infringement was ongoing, despite the fact that the elections had come and gone. 

Therefore, advocate Gavin Marriott argued in August, the ANC was entitled to relief in the form of an order barring the MK party, now the country’s official political opposition, from using both its registered name and logo.

“So long as the mark is continuing to be used there is continuing harm. Trademark infringement does not go away because the elections have passed.

“It is about the continued association between the MK party and the ANC and its history.”

Chetty granted the ANC leave to appeal.

He is one of six judges who are being interviewed for three vacancies at the appellate court.

The JSC has a recent history of MPs designated to the commission using interviews to grill candidates about rulings that went against their political parties or views. It contributed to a raft of complaints that the interview process was compromised by politicking.

In 2022, Economic Freedom Fighters leader Julius Malema tried to corner the Gauteng high court judge, Elias Motajane, during his interview for a position at the supreme court of appeal, about his ruling regarding former president Jacob Zuma’s release from prison on medical parole.

Matojane had ordered that Zuma return to prison to serve his 15-month sentence for contempt of court as former spy master Arthur Fraser’s decision to grant him medical parole was unlawful.

He objected to Malema’s question, saying: “You want to get me into trouble by asking a political question … I know where you are going.”

Zuma’s brushes with the law were raised in a more permissible manner on Monday when commissioners asked fellow supreme court of appeal candidate Judge Piet Koen about the courts’ response when confronted with so-called Stalingrad delay tactics not only the state but the appellate SCA has ascribed to the former president.

Koen was the trial judge in Zuma’s arms deal corruption case until he recused himself in January last year.

In doing so, he said the decision was necessitated by views he has expressed on the merits of Zuma’s ongoing bid to force the removal of Billy Downer as state prosecutor in the matter. 

These efforts remain ongoing, with Zuma’s counsel now pursuing an appeal to judge Nkosinathi Chili’s dismissal of a further application for Downer’s removal.

“Stalingrad is a topic on its own,” Koen replied, and went on to explain why it is complex for courts to handle.

“The primary question with Stalingrad I think is the question of availability of appeals.

As long as there are appeals and a person has the right in law to appeal then it is very difficult to close the doors and say well, it has to stop here, unless you can show that it is clearly mala fide or an abuse of process.

“But that is not something, in our constitutional dispensation, that I think a court should lightly conclude.”

Hence he said the opportunity for a court to say to a defendant that although a particular provision of the law entitled him to launch an appeal, “I am going to deny you that appeal, I’m going to conclude that what you are doing is in effect mala fides”.

“It is not a conclusion to which a court can lightly come. I am not saying it is always impossible, but it would certainly normally involve a number of initial procedures or appeals firstly being entertained.”

He said the expected solution was not necessarily in line with the law as it stood.

“The principle is easy, to find the application on the facts is difficult. So it is not always so easy to quell those things but there might, as it develops, because our law permits a number of appeals at different stages.”

He suggested that the Law Reform Commission might eventually look at limiting the number of stages of appeal that are available to litigants or defendants.

“I just did a rough calculation the other day. In an appeal from a regional court, one can end up with a situation where almost I think almost 18 judges eventually, taken at every step through the appeal process, would have considered that appeal and it would have gone through something like six or seven stages. All with delays.”

It meant, Koen said, that there was no simple answer for a trial judge in dealing with delay tactics.

“It is a lot more encompassing than that.”

Democratic Alliance MP Glynnis Breytenbach asked Koen whether the solution did not in fact lie in judges’ hands. “Do you not think what is required is more boldness from the bench?”

He replied: “Yes, it can imply more boldness from the bench. Well, when I say boldness I’d hate to equate boldness to a sort of recklessness, if that is the implication.”

But he added that stopping Stalingrad was as simple as denying a single application for leave to appeal.

“Even if application for leave to appeal is refused, there is another step that is available and there is another step available if that is refused, and you can go right up to the constitutional court and the constitutional court judgment — an application can be brought for it to be rescinded, and that is really only when you get to the ceiling.”

Zuma has followed precisely the trajectory Koen described, prompting others to follow suit and seek rescission orders from the highest court, without any prospect of success but with the result of delaying finality in their matter. 

“So what I am saying is that perhaps the solution lies in reducing the number of stages that might be available to a disgruntled accused who has been convicted because after all what we are looking at … is a system of laws that society subscribes to in order to ensure that there is orderliness. 

“It does not always arrive at the right conclusion but one needs to have a process, a procedure, where if there is a fault that is made, a mistake or a misdirection at one level, that there is a stage to correct it but perhaps the solution lies in getting to a point and saying if you reach that point, your appeal is final.”

He said he believed that in recent instances where judges have granted leave to appeal to applicants engaged in what appeared to be Stalingrad tactics, they had done so because the law, the applicable legal principles and their oath of office demanded it.

Asked by Breytenbach whether, in hindsight, considering both that he was vindicated by later courts with regard to every decision he took in the Zuma matter and that his recusal made for considerable further delay in the case, Koen said he believed he had been vindicated on this as well. 

The points he anticipated Zuma would plead, and which prompted him to recuse himself, were precisely those eventually pleaded.

Had he not recused himself, Zuma would have sought his recusal because he had already expressed his views as to those grounds.

“But I expect that recusal is a personal matter. Courts will differ on it, people will differ on it.”

Koen said he took issue with the second part of Breytenbach’s question because another trial judge was appointed shortly after he recused himself and the subsequent delays were not his doing.

“He could have proceeded and dealt with it. He had his reasons,” he said, referring to Chili.

Koen has repeatedly availed himself for promotion to the SCA, and was interviewed for a position in May this year. In an interview for a position on the same court in 2021, then chief justice Mogoeng Mogoeng accused him, at length, of rudeness.

Koen has since said he was “gutted” by the accusation, and had no recollection of the events Mogoeng described.

 On Monday, Chief Justice Mandisa Maya took care to mention that one of his nominees had described the KwaZulu-Natal high court judge as a fundamentally “good person”.

The JSC on Monday evening said it had decided to recommend to the president that Koen, Western Cape high court judge Elizabeth Baartman and Johannesburg high court judge Phillip Coppin be appointed to the appellate court.