Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd (786/21) [2022] ZASCA 51; [2022] 2 All SA 607 (SCA); 2022 (4) SA 57 (SCA); [2022] HIPR 201 (SCA) (12 April 2022)

Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd (786/21) [2022] ZASCA 51; [2022] 2 All SA 607 (SCA); 2022 (4) SA 57 (SCA); [2022] HIPR 201 (SCA) (12 April 2022)

The Supreme Court of Appeal held that Bliss Brands had voluntarily submitted to the jurisdiction of the ARB by participating fully in its processes without objection, thereby precluding any challenge to jurisdiction or the constitutionality of the ARB's MOI or Code. The ARB's powers are lawfully sourced in its MOI...

Source-derived case information.

Citation
[2022] ZASCA 51
Parties
Appellant: Advertising Regulatory Board NPC; Appellant: Colgate-Palmolive (Pty) Ltd; Appellant: Colgate-Palmolive Company; Respondent: Bliss Brands (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 April 2022
Case Number
786/21
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld with costs; High Court's orders set aside and replaced; certain relief remitted for determination.
Judges
Petse DP, Schippers JA, Plasket JA, Hughes JA, Matojane AJA
Legal Topics
Jurisdiction of Private Bodies, Self Regulation in Advertising, Administrative Action Under Paja, Freedom of Expression, Freedom of Association, Access to Court
Administrative Law Civil Procedure Commercial and Corporate Jurisdiction of Private Bodies Self Regulation in Advertising Administrative Action Under Paja Freedom of Expression Freedom of Association +1 more

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Summary, issues, holding and outcome

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Parties

Advertising Regulatory Board NPC

Appellant

Colgate-Palmolive (Pty) Ltd

Appellant

Colgate-Palmolive Company

Appellant

Bliss Brands (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the Advertising Regulatory Board (ARB) has lawful jurisdiction to consider complaints regarding advertising by non-members.
  2. 2 Whether clause 3.3 of the ARB's Memorandum of Incorporation is unconstitutional.
  3. 3 Whether the ARB's procedures and structures usurp judicial authority or lack fairness and independence.

Ratio Decidendi

The Supreme Court of Appeal held that Bliss Brands had voluntarily submitted to the jurisdiction of the ARB by participating fully in its processes without objection, thereby precluding any challenge to jurisdiction or the constitutionality of the ARB's MOI or Code. The ARB's powers are lawfully sourced in its MOI and Code, which constitute empowering provisions under PAJA. The ARB may consider complaints regarding advertisements by non-members for the benefit of its members, and its rulings are not binding on non-members unless they submit to jurisdiction. The High Court erred by raising constitutional issues mero motu and granting wide declaratory relief that was not sought by the...

Court Disposition

Appeal upheld with costs; High Court's orders set aside and replaced; certain relief remitted for determination.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the Gauteng Division of the High Court, Johannesburg, is set aside and replaced by: 'The relief sought in paragraphs 1, 4, 5, 6 and 8 of the applicant's amended notice of motion is dismissed with costs, including the costs of two counsel.'