African National Congress v Congress of the People (Association Inc. Under Section 21) and Others (55235/08) [2008] ZAGPHC 411 (12 December 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No. 55235/08

Date heard: 10 December 2008

Date of judgment: 12 December 2008

In the matter between:

AFRICAN NATIONAL CONGRESS PLAINTIFF

CONGRESS OF THE PEOPLE FIRST DEFENDANT

(ASSOCIATION INC. UNDER SECTION 21)

THE CHAIRPERSON

ELECTORAL COMMISSION SECOND DEFENDANT

THE CHIEF ELECTORAL OFFICER

ELECTORAL COMMISSION THIRD RESPONDENT

JUDGMENT

DU PLESSIS J:

[1] The applicant, the African National Congress (ANC), is the majority and ruling political party in South Africa. During the latter months of this year members of the ANC left the party and formed a new one The new party chose for rtself the name Congress of the People. wrth the abbreviated name Cope. This new political party is the first respondent in this application and I shall refer to it as Cope.

[2] Cope has applied in terms of the Electoral Commission Act 51 of 1996 (the Act) to register as a political party under the said name with the said abbreviation. The party's formal launch is scheduled for next Tuesday 16 December 2008

[3] The ANC now applies urgently for an interdict to restrain Cope from using the name Congress of the People as its name and/or from persisting with its application under the Act to register as a poliiical party under that name. Cope opposes the application and it is in the interest of justice and of certainty that the issue be resolved before Cope's formal launch.

[4] The chairperson of the electoral commission estabiished under the Act is the second respondent and the chief electoral officer (CEO) is the third respondent Initially the ANC also sought an order restraining the CEO, pending the finalisation of this application, from making any decision on Cope's application for registration under the Act. The ANC does not persist in seeking such an order. Consequently, the CEO. who gave notice of her intention to oppose the application. did not persist in the opposition. Both the CEO and the second respondent abide the decision of this court.

[5] The ANC's objection to Cope's use of the name Congress of the People stems from the historical Congress of the People that took place in June 1955. That Congress of the People adopted the Freedom Charter. The Freedom Charter is one of the most important documents in the history of this country. For some it is the most important document in the history of this country. In it are embodied principles for which those who took part in the liberation struggle fought and suffered. Principles of the Freedom Charter underlie the Constitution of the Republic of South Africa. 1996

[6] Although the parties differ as to some nuances, the essential historic events that led to the Congress of the People in 1955 are not in dispute. After the National Party with its policy of apartheid came into power in 1948. the liberation struggle intensified. The ANC was an important role player in the struggle. Its allies in the struggle included the South African Indian Congress. The South African Coloured People's Organisation and the South African Congress of Democrats. These organisations became known as the Congress Alliance with which the South African Congress of Trade Union also associated itself later on. Over a period of time the Congress Alliance, through the members of its constituent organisations promoted the idea of a Freedom Charter and gathered views and input across the country. These activities culminated in the Congress of the People that was held in Kliptown on 26 and 27 June 1955. Although the police disrupted the Congress. it was able to adopt the Freedom Charter. In due course the constituent organisations of the Congress Alliance individually adopted the Freedom Charter. The ANC is the only one of the constituent organisations that still exists.

[7] Before I deal with the ANC's contentions, it is perhaps useful to state what this case is not about. First, the ANC does not contend that it has any proprietary or similar real rights in the name Congress of the People. In the second place, while the historic event and its name, being part of the history of this country, belong to all the people of South Africa, the ANC does not contend that use of the name Congress of the People is for that reason per se unlawfut. Put differently, the ANC does not contend that simply because Congress of the People refers to an important historic event. people and organisations are not free to appropriate the name.

[8] Counsel for the ANC contended that Cope's use of the name Congress of the People constitutes the delict of unlawful competition. That is so, counsel contended, because Cope's use of the name conveys to the public a false message through which Cope will unfairly attract votes to the detriment of rival political parties. It will in particular cause harm to the ANC because the 1955 Congress of the People lives in the hearts and minds of the people and. due to its involvement in the historic event, forms an integral part of the goodwill that the ANC has.

[9] Counsel were, rightly in my view, agreed that the law of unlawful competition applies to political parties: a political party may not employ unlawful means to attract votes. (See as to the applicability of the law of unlawful competition outside the filed of commerce. Van Heerden & Neethling, Unlawful Competition (2"° ed.) p. 2; We have also been referred to Pan Africanist Congress of Azania v Thami Ka Plaatjie and Others (unreported OPD Case no. 5173/2008)) Similar principles have been applied in the United Kingdom and in the United States of America in regard to competition in the political field. (We were referred to Burge v Haycock [2002] R.P.C 553 (CA); Tomei v Finley 512 F.Supp 695 (1981); United We Stand America, Inc. v United We Stand. America New York, Inc, [1997] USCA2 569; 128 F.3d 86 (1997); Partido Revolucionario Dominicano (Prd) Seccional Metropolitana De Washington-DC v Partido Revolucionario Dominicano. Seccional De Maryland Y Virginia 312 F. Supp. 2d 1 (2004))

[10] The essential foundation of the ANC's contention is that, by appropriating the name Congress of the People. Cope is conveying a false message to the voters of South Africa. It may be accepted that if. by using a particular name, a political party deliberately

conveys a false message to the voters it will be competing unlawfully. Therefore, the first question is whether, purely by its use of the name Congress of the People, Cope is conveying to the voters a false message. In order to determine whether the use of the name conveys a message and whether that message is false, the court must view it from the perspective of a reasonable voter who is reasonably informed.

[11] In its founding papers the ANC contends that by using the name Congress of the People, Cope is misrepresenting itself as being the 1955 Congress of the People or as exclusively being entitled to be associated with and identified by that name.

[12] In my view the mere use of the name Congress of the People does not convey that Cope actually is the 1955 Congress of the People. No reasonable voter, even those with but a passing knowledge of the relevant history, will think that Cope, a party established in 2008, is the event that took place in 1955. Those thai have no knowledge of the history will not be deceived because they will not know that the term Congress of the People might refer to a historic event.

[13] The facts before us show that Cope indeed intends to campaign on the basis that it seeks to uphold the principles of the Freedom Charter. Bearing that in mind, the reasonable voter with knowledge of the relevant history will in my view infer that that may be a reason why Cope calls itself the Congress of the People. In that sense the use of the name Congress of the People conveys a message that Cope associates itself and wishes voters to associate it with the Congress of the People as the birthplace of the Freedom Charter. That is not a misrepresentation, however. The electorate will in time pass judgment as to whether Cope lives up to the ideals of the Freedom Charter, but there is no basis for holding that it does not intend to do so. I shall return to the question of exclusivity, but in my view the mere use of the name Congress of the People does not convey that Cope has any exclusive claim to the 1955 event or to the Freedom Charter.

[14] The ANC further contends that by choosing the name Congress of the People. Cope is misrepresenting that it is the sole heir and upholder of the ideals that originated from the 1955 Congress. While I accept that Cope. like the people of South Africa in general. regards itself as an heir of ideals that originated from the 1955 event, I do not hold that by using the name Cope conveys that it is the sole heir.

[15] Mr Ginsberg pointed out, correctly, that in terms of section 16(1)(b) of the Act Cope will, once registered as a political party under that name. be entitled exclusively to use the name Congress of the People as a name for a political party. That. counsel submitted, will in the long term result in people identifying only Cope with the 1955 Congress of the People. I tend to agree with Mr Puckrin for Cope that we are called upon to judge the case on the facts as they stand today and not as they might stand in the future. In any event. I do not agree that people will in the future forget the history to the extent that they will identify a party that was founded in 2008 with an event that took place more than 50 years before that. I should perhaps add that the exclusivity under the Act will not preclude lawful references by name to the 1955 event.

[16] It is concluded that Cope's use of the name Congress of the People does not convey a false message. For that reason Copes use of the name does not amount to unlawful competition. It is unnecessary to consider the arguments pertaining to the other elements of the delict of unlawful competition.

[17] Both the parties were represented by senior and junior counsel and have accepted that the costs of two counsel are warranted.

In the result the following order is made The application is dismissed with costs, including the costs of two counsel.

BR DU PLESSIS

JUDGE OF THE HIGH COURT

I agree

BM NGOEPE

JUDGE PRESIDENT OF THE HIGH COURT

JB SHONGWE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

Applicant's Legal Representation:

ADAMS & ADAMS

ADAMS & ADAMS PLACE

1140 PROSPECT STREET

HATFIELD

PRETORIA

REF: L36790/MR CK JOB/MS K THOMPSON

1st Respondent's Legal Representation:

BOUWERS INC

6 ALBURY OFFICE PARK

CNR. ALBURY ROAD & JAN SMUTS AVENUE

HYDE PARK JOHANNESBURG

REF: MR DEON BOUWER

2nd Respondent's Legal Representatïon:

BOWMAN GILFILLAN INC

165 WEST STREET

SANDTON

REF: MR ANdREW SMITH/JN/1168081