Advertising Standards Authority v Herbex (Pty) Ltd (902/2016) [2017] ZASCA 132; 2017 (6) SA 354 (SCA); 2017 BIP 205 (SCA) (29 September 2017)

Advertising Standards Authority v Herbex (Pty) Ltd (902/2016) [2017] ZASCA 132; 2017 (6) SA 354 (SCA); 2017 BIP 205 (SCA) (29 September 2017)

The Supreme Court of Appeal held that the ASA, as a voluntary association, has no jurisdiction over non-members who have not submitted to its jurisdiction. The ASA may not require non-members to participate in its processes, issue instructions, orders, or rulings against them, or sanction them. However, the ASA may consider complaints and issue rulings to its members regarding advertisements by non-members, solely for the purpose of advising its members whether to accept or withdraw such advertisements. The ASA must clarify in its standard letter of complaint that non-members are not obliged to participate in ASA processes, but that the ASA may still consider complaints for the benefit of...

Citation
[2017] ZASCA 132
Parties
Appellant: Advertising Standards Authority; Respondent: Herbex (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2017
Case Number
902/2016
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld to the extent of the substituted order; each party to bear its own costs of appeal; ASA to pay costs of application in the court a quo.
Judges
Navsa, Mathopo, Plasket, Rogers, Schippers
Legal Topics
Jurisdiction of Voluntary Association, Self Regulation, Advertising Code, Declaratory Relief, Costs on Appeal
Commercial and Corporate Civil Procedure Jurisdiction of Voluntary Association Self Regulation Advertising Code Declaratory Relief Costs on Appeal

Case Brief

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Parties

Advertising Standards Authority

Appellant

Herbex (Pty) Ltd

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Does the Advertising Standards Authority (ASA) have jurisdiction over non-members who have not submitted to its jurisdiction?
  2. 2 Can the ASA require non-members to participate in its processes or issue binding rulings against them?
  3. 3 What is the proper scope of relief and costs in disputes involving ASA jurisdiction over non-members?

Ratio Decidendi

The Supreme Court of Appeal held that the ASA, as a voluntary association, has no jurisdiction over non-members who have not submitted to its jurisdiction. The ASA may not require non-members to participate in its processes, issue instructions, orders, or rulings against them, or sanction them. However, the ASA may consider complaints and issue rulings to its members regarding advertisements by non-members, solely for the purpose of advising its members whether to accept or withdraw such advertisements. The ASA must clarify in its standard letter of complaint that non-members are not obliged to participate in ASA processes, but that the ASA may still consider complaints for the benefit of...

Court Disposition

Appeal upheld to the extent of the substituted order; each party to bear its own costs of appeal; ASA to pay costs of application in the court a quo.

Orders

  • The appeal is upheld to the extent reflected in the substituted order.
  • Save for paragraph 90.8, the order of the court a quo is set aside and substituted as follows: