Nestle (South Africa) Pty Ltd v Mars Incorporated (333/99) [2001] ZASCA 76; [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) (31 May 2001)

Nestle (South Africa) Pty Ltd v Mars Incorporated (333/99) [2001] ZASCA 76; [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) (31 May 2001)

The Supreme Court of Appeal held that the ASA was contractually obliged to consider and rule upon complaints made to it in accordance with its Code of Advertising Practice. The defence of lis alibi pendens was found to be inapplicable because the ASA and the Registrar of Trade Marks are distinct tribunals with...

Source-derived case information.

Citation
[2001] ZASCA 76
Parties
Appellant: Nestlé (South Africa) Pty Limited; Respondent: Mars Incorporated
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2001
Case Number
333/99
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Nienaber, Harms, Mthiyane, Nugent, Chetty
Legal Topics
Self Regulation in Advertising, Contractual Obligations of Industry Bodies, Lis Alibi Pendens, Trade Mark Registration, Jurisdiction of Industry Bodies
Commercial and Corporate Civil Procedure Self Regulation in Advertising Contractual Obligations of Industry Bodies Lis Alibi Pendens Trade Mark Registration Jurisdiction of Industry Bodies

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Summary, issues, holding and outcome

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Parties

Nestlé (South Africa) Pty Limited

Appellant

Mars Incorporated

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 Whether the Advertising Standards Authority (ASA) was contractually obliged to consider and rule upon the complaint lodged by Mars Incorporated.
  2. 2 Whether the ASA was entitled to defer or refuse to consider the complaint on the basis that the matter was pending before the Registrar of Trade Marks.
  3. 3 Whether the defence of lis alibi pendens applies to proceedings before the ASA and the Registrar of Trade Marks.

Ratio Decidendi

The Supreme Court of Appeal held that the ASA was contractually obliged to consider and rule upon complaints made to it in accordance with its Code of Advertising Practice. The defence of lis alibi pendens was found to be inapplicable because the ASA and the Registrar of Trade Marks are distinct tribunals with different functions, powers, and parties. The ASA could not abdicate or defer its responsibility to the Registrar, even if some aspects of their respective inquiries might coincide. The court further found that Mars Incorporated had properly authorised the proceedings, either at the outset or by subsequent ratification. The proceedings were not premature, as the decision in question...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • Costs are awarded to the respondent, including the costs occasioned by the employment of two counsel.