Judge Mahendra Chetty grilled by JSC over his MKP/ANC trademark ruling

It was a polite grilling but Durban high court judge Mahendra Chetty was in the hot seat during interviews for the Supreme Court of Appeal (SCA) over his ruling against the ANC in its trademark dispute against the MK Party (MKP).

ANC representatives on the Judicial Service Commission took the opportunity on Monday to question Chetty's ruling against the party in April this year, just a month before the national elections. In August he granted the ANC leave to appeal his judgment to the SCA.

Commissioner Refilwe Mtsweni-Tsipane got the ball rolling. Referencing the ANC-MKP legal fight over the use of the MK name and logo, she asked: “How do you ensure judicial independence and impartiality in such high-profile cases?”

Chetty, one of six candidates applying for three vacancies on the appeal court, said: “I am a fair person. I determine any matter, whether it be high-profile or not, based on the facts and the law before me.”

He then attempted to sidestep a question from commissioner Kenneth Mmoiemang on the merits of his ruling. “I have granted leave to appeal to the SCA, so I am not sure whether I am permitted to express my view. I have already indicated another court could come to a different conclusion,” he said.

But commissioner advocate Tembeka Ngcukaitobi (one of the president’s nominees) was not letting him off the hook.

“I think you should do justice by engaging. You have granted leave so it’s out of your hands. He is testing the reasoning you gave in the judgment. I don’t want people to say you are avoiding questions,” he said.

In essence, Mmoiemang was about the “first user” principle: that even if a trademark is not registered, that principle created an infringement merely by the fact the logo and name had been used by the ANC since 1961.

Chetty said the matter was not argued on that basis, “but I accept the point you raise”.

Prof Clement Marumoagae of Wits Law School later came to his assistance. “I am not really sure if you can be criticised. The issue of first user was not applicable,” he said.

Chetty, who has been on the bench in KwaZulu-Natal for 10 years and has a strong public interest litigation background, having headed up the Legal Resources Centre in Durban, is one of 54 candidates who will be interviewed by the commission for 21 judicial vacancies.

The interviews are being conducted in the absence of the sole MKP representative, impeached judge John Hlophe, after the Western Cape High Court granted an interdict stopping his participation until the outcome of a review of parliament’s decision to nominate him to the body.

This weekend Johannesburg high court judge Stuart Wilson refused an application by the MKP for the hearings to be postponed until the outcome of that review.

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