Advocate Chamisa knows it as an advocate. There was nothing of probative value or material to the case that was ommitted or not considered that could have resulted in the court ruling in favour of advocate Chamisa’s team. The judge applied the law (Intellectual Property Rights Law)correctly without any errors at all. In Intellectual Property Rights Law, there is a test that is applied which must be met by the team pursuing the case against the other. Should the party or plaintiff fail to prove any misrepresentation or passing off or prove the issue of good will against the other party, then the plaintiff cannot succeed in their case.
By passing of its meant misrepresentation by the other party or to act as if you have the exclusive right or monopoly to use a trademark or logo or name. The person or company that does so must make a reasonable person or voter to reasonably believe that they are part of or they own that name or are licenced to use the name or they are the original owners of that name or political party. If it is selling of goods, the consumers will reasonably believe that they are buying goods of the original company or in this case Dr Khuphe will be acting as if she is representing MDC T (as is the issue in contention is or as alleged by the plaintiff).
But here the truth is that both Advocate Chamisa and Dr Khuphe has the legal right or Intellectual Property Right to use the name MDC T name or logo or anything that represents MDC T as a political party. With this legal reasoning, in my view, the supreme court will uphold the decision arrived by the High Court judge. The High Court judge even advised them that the case needs to be dealt with in an arbitration.
The arbitration will give an award(its decision).Furthermore, the two parties are likely to resolve that matter in an amicable manner, as there will be a chosen arbitrator who will act in utmost good faith, dutifully and impartially. That does not mean that the High Court did not do that. But it is befitting for the case to be dealt with in an arbitration.
In my view, Dr Khuphe must accept being the Vp for now, with a condition that the MDC T constitution be amended to allow only one Vp (as agreed in Dr Khuphe’s Congress).When the two terms of Advocate Chamisa are over, Dr Khuphe can then take over. Common sense has to prevail here.There is not much time left now. The elections are near. For progress sake, both parties need to humble themselves and come to a good understanding. There is no need to waste time and money on this case. Dispute Resolution method is the answer to this problem. My opinion without any prejudice.
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