Herbex (Pty) Ltd v Advertising Standards Authority

• Jurisdiction: South Africa

Herbex (Pty) Ltd v Advertising Standards Authority
2016 (5) SA 557 (GJ)

2016 (5) SA p557

Citation	2016 (5) SA 557 (GJ)
Case No	14/45774
Court	Gauteng Local Division, Johannesburg
Judge	Du Plessis AJ
Heard	April 25, 2016
Judgment	May 5, 2016
Counsel	A Subel SC (with S Stein SC) for the applicant.; G Marcus SC (with N Ferreira) for the respondent.

Flynote : Sleutelwoorde B

Media — Advertising — Advertising Standards Authority — Jurisdiction over non-members — No lawful basis for exercising jurisdiction over non-members — Practical consequences of adjudicating complaints against non-members constituting imposition of jurisdiction, infringing non-members' C constitutional rights of freedom of association and expression — ASA may not issue any instruction, order, ruling or sanction against non-members without their consent or submission to jurisdiction.

Voluntary association — Action by — Against non-members — No lawful basis D for exercising jurisdiction over non-members — Practical consequences of voluntary association's adjudication of complaints against non-members may, as in present case, constitute imposition of jurisdiction, infringing non-members' constitutional rights of freedom of association and expression — No instruction, order, ruling or sanction may be taken against non-members without their consent or submission to jurisdiction. E

Headnote : Kopnota

The applicant (Herbex), although not a member of the respondent (the ASA) — a voluntary association established to promote and enforce advertising standards — had for a number of years subjected itself to the ASA's procedures and rulings regarding complaints received in respect of some of its advertisements. However, having obtained legal opinion that the ASA's F rulings were not legally enforceable against non-members, Herbex brought the present application, seeking declaratory orders to that effect and related interdictory relief (see [11]).

The ASA acknowledged that it had no jurisdiction over non-members but insisted upon its entitlement to make determinations pertaining to non-members' advertising (see [17]), and denied that doing so constituted an assertion of G jurisdiction over them (see [18] – [19]).

Held

The ASA's assertion that the consideration of complaints and issuing of rulings H against non-members did not constitute an assertion of jurisdiction, was untenable. The fact was that the respondent's determination of complaints relating to Herbex's advertisements, imposed its code — the ASA's guiding document, the Code of Advertising Practice — on Herbex and made it subject thereto. The practical effect of the ASA's actions made it irrelevant that Herbex was not one of its members; it was treated exactly the same as I a member, effectively rendering it a de facto member of an association that it did not wish to belong to. This constituted an infringement of Herbex's constitutional rights to freedom of association and expression. (Paragraphs [20] – [21], [36] and [52] – [56] at 564A – C, 566H – 567A and 569F – 570H.)

In analysing the lawfulness of the respondent's conduct vis-à-vis non-members, it was important to be mindful of the principle of privity of contract. J

2016 (5) SA p558

A The ASA and its members could not by agreement between themselves impose the code that they had agreed to be bound by upon non-members who had not so agreed, and in doing so confer jurisdiction upon the ASA in respect of a non-member's advertising. There was in consequence no basis in law that the respondent, absent the consent of the non-member, could be permitted to assert jurisdiction over the advertising of such non-member, B whether in media owned by non-members or in media owned by the respondent's members. Also, the ASA's own articles, properly construed, did not permit it to regulate the conduct of non-members in the absence of their agreement to be so regulated. It was clear from both the articles and the code that the ASA's mandate was one of consensus rather than coercion, and that it was of application only to those who agreed to be subject to its C dictates. (Paragraphs [26] – [27], [31] and [37] at 565B/C – E, 566A – B and 567B.)

The ASA had no jurisdiction over any person or entity who was a non-member. The determination of complaints relating to advertisements of non- members and the issuing of instructions, orders or rulings, constituted an unlawful imposition of its jurisdiction over such non-members. It followed D that the ASA may accordingly not issue any instruction, order or ruling against non-members, and may not sanction them without their consent or submission to jurisdiction. (Paragraph [41] at 567H.)

Cases Considered

Annotations

Case law E

BDS South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others 2015 (1) SA 462 (GJ): dicta in paras [81] – [82] and [84] applied

Brandhouse Beverages (Pty) Ltd v Advertising Standards Authority of South Africa and Others [2015] ZAGPPHC 243: dicta in paras [28] and [29] applied

British American Tobacco South Africa (Pty) Ltd v Minister of Health (National Council Against Smoking as amicus curiae) [2012] 3 All SA 593 (SCA): applied F

City of Cape Town v Ad Outpost (Pty) Ltd and Others 2000 (2) SA 733 (C) (2000 (2) BCLR 130): referred to

Clur v Keil and Others 2012 (3) SA 50 (ECG): dictum in para [23] applied

Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) ([2006] 1 All SA 103): referred to G

De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA) (2001 (6) BCLR 531): referred to

Du Plessis v Minister of Justice 1950 (3) SA 579 (W): referred to

Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) H 1980 (2) SA 516 (T): dictum at 520D applied

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): referred to

Governing Body of the Juma Musjid Primary School and Another v Essay NO and Others (Centre for Child Law and Another as Amici Curiae) 2011 (8) BCLR 761 (CC) ([2011] ZACC 13): dictum in para [58] applied

Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) ([1996] 4 All SA 675): referred to I

Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743; [2005] ZACC 7): dicta in paras [47] J and [66] applied

2016 (5) SA p559

Pedal Power Association v Cycling South Africa and Another A 2014 JDR 306 (WCC): referred to

Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC): dictum in para [51] applied

Publications Control Board v William Heinemann Ltd and Others 1965 (4) SA 137 (A): referred to

R v Bunting 1916 TPD 578: referred to B

R v Roux and Another 1936 AD 271: referred to

Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A): referred to

Rowles v Jockey Club of SA and Others 1954 (1) SA 363 (A): dictum at 364C applied C

S v Evans 1982 (4) SA 346 (C): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449; [2001] ZACC 17): referred to

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): dictum in para [71] applied

S v Turrell and Others 1973 (1) SA 248 (C): referred to D

Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam and Another; Maphanga v Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg, and Others 1995 (4) SA 1 (A) ([1995] 2 All SA 300; [1995] ZASCA 49): referred to

The Law Society of the Transvaal v Tloubatla 1999 (11) BCLR 1275 (T) ([1999] 4 All SA 59): applied E

The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others 2012 (3) SA 325 (SCA) ([2011] ZASCA 238): referred to

Tödt v Ipser 1993 (3) SA 577 (A): dictum at 589C – D applied

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): referred to F

Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A): applied.

Case Information

A Subel SC (with S Stein SC) for the applicant.

G Marcus SC (with N Ferreira) for the respondent. G

An application for declaratory orders and interdictory relief. The order is at [90].

Order

1.

It is declared that the respondent has no jurisdiction over any person H or entity who is not a member of the respondent and that the respondent may, in the absence of a submission to its jurisdiction, not require the applicant to participate in its processes, issue any instruction, order or ruling against the applicant or sanction it.

2.

It is declared that all rulings issued by the respondent against the applicant are void. I

3.

The respondent is directed to remove from its website and other official publications all rulings issued in respect of the applicant.

4.

The respondent is interdicted, in the absence of a submission to its jurisdiction, from issuing any further rulings or adjudicating any further complaints against the applicant. J

2016 (5) SA p560

5.

A The respondent is directed to include in its standard letters of complaint to non-members a reference to the fact that, in the absence of a submission to its jurisdiction, it has no jurisdiction to adjudicate the complaint and that such non-member is not bound to participate in its processes.

6.

B It is declared that there is no lawful basis for the respondent to unilaterally impose appeal fees on the applicant as a non-member of the respondent in the absence of a contractual service agreement between the applicant and the respondent.

7.

The respondent is directed to repay the appeal fees in the amounts C...