THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 786/21

In the matter between:

ADVERTISING REGULATORY BOARD NPC             FIRST APPELLANT
COLGATE-PALMOLIVE (PTY) LTD                      SECOND APPELLANT
COLGATE-PALMOLIVE COMPANY                        THIRD APPELLANT

and

BLISS BRANDS (PTY) LTD                                                       RESPONDENT

Neutral citation: Advertising Regulatory Board NPC and Others v Bliss Brands
(Pty) Ltd (case no 786/21) [2022] ZASCA 51 (12 April 2022)
Coram:
PETSE DP, SCHIPPERS, PLASKET and HUGHES JJA and
MATOJANE AJA
Heard:

1 March 2022
Delivered:            This judgment was handed down electronically by circulation
to the parties' representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 09h45 on
12 April 2022.

Summary: Administrative Law – private body exercising public functions –
submission to jurisdiction – powers of the Administrative Regulatory Board
(ARB) – complaints relating to advertising by non-members of ARB –  whether
lawful for ARB to consider – whether ARB structures independent, usurp judicial
authority or follow fair procedures – civil procedure – courts  should decide issues
defined by parties – court raising  constitutionality of ARB’s powers mero motu
– inappropriate.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Fisher J
sitting as court of first instance):
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 following:
‘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.’
The relief sought by the applicant in paragraphs 2, 3 and 7 of its amended
notice of motion is remitted to the Gauteng Division of the High Court,
Johannesburg for determination.

________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Petse DP, Plasket and Hughes JJA and Matojane AJA
concurring)

[1] The first appellant, the Advertising Regulatory Board NPC (ARB), is a
non-profit company which carries on business as an independent, self-regulatory
body in the advertising industry. Its members are required to adhere to the Code
of Advertising Practice (the Code), which is based on international best practice
for advertising self-regulation and is the guiding document of the ARB. The Code
states that its two main purposes are to protect the consumer and to ensure
professionalism among advertisers; and that advertising is a service to the public

and thus ‘should be informative, factual, honest and decent’. All advertising in
the electronic broadcast media is subject to the Electronic Communications Act
36 of 2005 (ECA). Every electronic broadcaster must adhere to the Code as
determined and administered by the ARB,1 which has replaced and performs the
same functions as the former Advertising Standards Authority of South Africa
(ASA).2 The second and third appellants, Colgate-Palmolive (Pty) Ltd and
Colgate-Palmolive Company (Colgate), and the respondent, Bliss Brands (Pty)
Ltd (Bliss Brands), are competitors in the toiletries business.

[2] In December 2019 Colgate lodged a complaint with the ARB that Bliss
Brands, in the packaging of its Securex soap, had breached the Code by exploiting
the advertising goodwill and imitating the packaging architecture of Colgate’s
Protex soap. Although Bliss Brands is not a member of the ARB, it raised no
objection to the ARB’s jurisdiction and participated fully in its hearings, taking
the matter all the way to the ARB’s Final Appeal Committee (FAC). After the
FAC dismissed its appeal, Bliss Brands applied to the Gauteng Division of the
High Court, Johannesburg (the high court) to review and set aside the FAC’s
decision.

[3] The high court (Fisher J) mero motu questioned the constitutionality of the
ARB’s powers. Bliss Brands then amended its notice of motion and supplemented
its founding papers so that they bore little resemblance to its original application.
It raised a number of constitutional points which found favour with the court. It
made a series of orders which effectively dismantled the system of self-regulation
of advertising in South Africa in its entirety. This included an order declaring part
of the ARB’s Memorandum of Incorporation (MOI) ‘unconstitutional, void and
unenforceable’, together with further declaratory and interdictory relief. The issue

1 Section 55 of the Electronic Communications Act 36 of 2005 (ECA).
2 Section 1 of the ECA defines the Advertising Standards Authority of South Africa as ‘the entity which regulates
the content of advertising, or any entity that replaces it but has the same functions.’

in this appeal, which is before us with the leave of the high court, is whether it
was correct in making those orders.

The complaint and proceedings below
[4] The Directorate of the ARB, responsible for adjudicating complaints at
first instance, found that Bliss Brands had not breached the Code in the packaging
of its Securex soap. Colgate appealed to the Advertising Appeals Committee
(AAC), which overturned the Directorate’s decision. Bliss Brands then lodged an
appeal to the FAC. It found in favour of Colgate in a split decision. Its
chairperson, Judge Ngoepe, cast the deciding vote. The FAC’s ruling required
Bliss Brands to cease distribution of the offending Securex packaging. This was
followed by a brief FAC decision clarifying the costs award in its earlier ruling.

[5] Subsequently, Bliss Brands brought an urgent application in the high court
to suspend the FAC’s ruling, pending a review application. That application was
dismissed. Undeterred, on 2 October 2020 Bliss Brands launched another urgent
application for interim relief, coupled with an application to review the FAC’s
ruling based on a violation of the principle of legality and various grounds under
the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It did not
challenge the ARB’s jurisdiction, nor did it suggest that its participation in the
ARB’s proceedings was anything but voluntary.

[6] On 30 October 2020 Fisher J issued a directive that the parties submit
argument on the constitutionality of those parts of the Code and the MOI, which
authorised the Directorate and the Committees of the ARB to determine whether
the packaging of a product constituted passing off or breach of copyright (the
directive). The parties were also required to address the basis of the ARB’s
jurisdiction ‘to usurp the function of the courts in relation to these issues’.

[7] The directive resulted in a fundamental change to the relief sought by Bliss
Brands. It asked for an order that the entire MOI of the ARB be declared
‘unconstitutional and void’. In the alternative it sought declaratory orders that
clause 3.3 of the MOI is unconstitutional; that the ARB has no jurisdiction over
any person who is not a member of the ARB; that the ARB may not issue rulings
in relation to any non-member or that non-member’s advertising; and that the
rulings of the FAC in August 2020 are unlawful.

[8] The high court made the following declaratory orders. Clause 3.3 of the
MOI is unconstitutional and invalid because it permits the ARB to decide
complaints concerning advertisements of non-members. The ARB has no
jurisdiction over non-members in any circumstances, and may not issue any
rulings in relation to non-members or their advertising. The FAC’s ruling
(upholding Colgate’s complaints against Bliss Brands’ soap packaging with
costs) is unlawful. It was set aside.

[9] Before addressing the correctness of these orders, it must again be
emphasised that a court should decide only the issues before it, as pleaded by the
parties. In Fischer v Ramahlele,3 this Court said:
‘[I]t it is for the parties, either in the pleadings or affidavits (which serve the function of both
pleadings and evidence), to set out and define the nature of the dispute, and it is for the court
to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining
to the basic human rights guaranteed by our Constitution, for “it is impermissible for a party to
rely on a constitutional complaint that was not pleaded”. There are cases where the parties may
expand those issues by the way in which they conduct the proceedings. There may also be
instances where the court may mero motu raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case. That is subject to the proviso that no
prejudice will be caused to any party by its being decided. Beyond that it is for the parties to
identify the dispute and for the court to determine that dispute and that dispute alone.’

3 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395
(SCA) para 13, footnotes omitted; affirmed by the Constitutional Court in Public Protector v South African
Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC) para 234.

[10] This admonition, regrettably, was disregarded by the high court. Bliss
Brands’ submission to the jurisdiction of the ARB should have put paid to any
challenge to jurisdiction, or to the constitutionality of the Code or MOI. Instead,
the issuance of the directive resulted in virtually an entirely new case for decision.
Most recently, the Constitutional Court has affirmed the rule that constitutional
issues should only be raised by courts mero motu in exceptional circumstances.4
This is not such a case.

[11] The high court found that the submission to the ARB’s jurisdiction by Bliss
Brands ‘cannot be said to constitute actual consent’. This finding is unsustainable
on the evidence. The letter advising Bliss Brands of the complaint requested it to
‘inform us if you do not consider yourself to be bound by the ARB’, and advised
that Bliss Brands was not obliged to respond or furnish a defence.

[12] Bliss Brands responded in full, contesting the merits of the complaint
without raising any objection to the ARB’s jurisdiction, its legitimacy or its
procedures. It participated fully in the hearing of the complaint at all stages of the
proceedings, without a hint of protest. It accepted the Directorate’s ruling on the
complaint in its favour. When Colgate’s appeal to the AAC was upheld, Bliss
Brands lodged an appeal to the FAC. It even sought an alternative order of
remittal to the FAC for a rehearing, if the main relief for substitution of the FAC’s
ruling was refused.

[13] This Court has repeatedly held that a failure to raise any objection to
jurisdiction and subsequent participation in proceedings is sufficient to
demonstrate submission to jurisdiction.5 Bliss Brands unquestionably submitted

4 AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional
Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others
[2021] ZACC 3; 2021 (3) SA 246 (CC) para 58.
5 Naidoo v EP Property Projects (Pty) Ltd and Others [2014] ZASCA 97 para 27; Purser v Sales; Purser and
Another v Sales and Another 2001 (3) SA 445 (SCA) para 22.

to the jurisdiction of the ARB. Although the appeal could be disposed of solely
on this basis, we were urged by counsel for the ARB not to do so, because the
high court’s pronouncements on the constitutionality of clause 3.3 of the MOI
and its finding that the ARB may not issue rulings in relation to non-members or
their advertising, will create legal uncertainty. This, in turn, will impede the ARB
in carrying out its functions as a self-regulating body in the advertising industry.

[14] More fundamentally, however, the high court’s analysis included
statements of principle which the appellants have criticised. For example, the high
court stated that the ARB is not empowered to determine breaches of the Code
under the ECA; that the powers it exercises in relation to the regulation of
advertising by non-members is not sourced in law and thus unconstitutional; that
a non-member is ‘denied the right to defend itself in a court of law on the merits
of a complaint’; and that the AAC and FAC may reasonably be perceived to lack
independence. We must proceed to address these criticisms and insofar as they
are valid, so declare, since otherwise the high court’s statements of principle
would remain authoritative.

The ARB’s powers are sourced in law
[15] The high court accepted that private bodies are capable of exercising public
powers in the absence of statutory authorisation, if sourced in an instrument or
agreement, such as the MOI. Despite this, it held that the ARB could not make
decisions regarding the advertisements of non-members – even where this was
being done for the benefit of the ARB’s members. The issue, the court said, was
whether the exercise of public power was lawful.

[16] PAJA expressly contemplates that a juristic entity other than an organ of
state may take decisions that constitute administrative action in terms of an
‘empowering provision’. The latter is defined as ‘a law, a rule of common law,

customary law, or an agreement, instrument or other document in terms of which
an administrative action was purportedly taken’.6 PAJA deliberately gives a
person other than an organ of state a larger set of permissible empowering
provisions than those given to organs of state.7

[17] The ARB’s MOI and Code, incorporating its Procedural Guide, constitute
empowering provisions. The mere absence of a statutory source for these powers
is therefore no barrier to the ARB validly exercising public functions. To hold
otherwise would invalidate the actions of all other private bodies that perform
vital public functions in the public interest, without any empowering statute, such
as sports professional bodies,8 the Press Council,9 professional associations and
the like. It would also force courts to adopt a strained interpretation of the phrase
‘public powers or public functions’ to exclude such private bodies, thereby
limiting the protective reach of judicial review proceedings under PAJA and the
principle of legality.

[18] The ARB is empowered to consider complaints on four bases:
(a)
If the advertiser is a member of the ARB, or a member of one of the
industry bodies that is a member of the ARB, then the ARB is entitled to consider
the complaint because the advertiser has agreed to be bound by the Code, either
directly or indirectly through its membership of an industry representative body
or association.
(b)
If the publisher of the advertisement is a member of the ARB, then the
ARB is entitled to consider the complaint because the publisher has agreed to
abide by the Code. The Code precludes those who are bound by it from accepting
advertising that conflicts with the Code.

6 Section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
7 South African National Parks v MTO Forestry (Pty) Ltd and Another [2018] ZASCA 59; 2018 (5) SA 177 (SCA)
para 50.
8 Ndoro and Another v South African Football Association 2018 (5) SA 630 (GJ).
9 Media 24 Holdings (Pty) Ltd v Chairman of the Appeals Board of the Press Council of South Africa and Another
[2014] ZAGPJHCl 194 para 19.

(c)
If neither the publisher nor the advertiser are members of the ARB, the
ARB is still entitled to consider the complaint on behalf of its members, so that
they may decide whether or not to publish that advertisement. In Herbex,10 this
Court expressly confirmed that the ARB may do so.
(d)
If the advertisement is broadcast by a broadcast service licensee in terms
of the ECA, s 55(1) of the ECA confers on the ARB the power to consider
complaints in respect of that advertisement.

[19] The high court’s orders cut across (b), (c) and (d) and preclude the ARB
from exercising its powers on those bases. As to (d), the court held that s 55 ‘does
no more than identifying the Code as a code to which broadcasting service
licensees must adhere. It does not empower the ARB to determine breaches of
the Code’.

[20] Section 55 of the ECA provides:
‘Control over advertisements
(1) All broadcasting service licensees must adhere to the Code of Advertising Practice (in this section
referred to as the Code) as from time to time determined and administered by the Advertising Standards
Authority of South Africa and to any advertising regulations prescribed by the Authority in respect of
scheduling of adverts, infomercials and programme sponsorships.
(2) The Complaints and Compliance Committee must adjudicate complaints concerning alleged
breaches of the Code by broadcasting service licensees who are not members of the Advertising
Standards Authority of South Africa, in accordance with section 17C of the ICASA Act, as well as
complaints concerning alleged breaches of the advertising regulations.
(3) Where a broadcasting licensee, irrespective of whether or not he or she is a member of the said
Advertising Standards Authority of South Africa, is found to have breached the Code or advertising
regulations, such broadcasting licensee must be dealt with in accordance with applicable provisions of
sections 17A to 17H of the ICASA Act.’

[21] These provisions make three things clear. First, all broadcast service
licensees (whether members or non-members of the ARB) are obliged to comply

10 Advertising Standards Authority v Herbex (Pty) Ltd 2017 (6) SA 354 (SCA).

with the Code as administered by the ARB. Second, there are two separate
streams for the initial determination of complaints concerning breaches of the
Code: if the licensee is an ARB member, the ARB is obliged to decide whether
there has been a breach of the Code; where the licensee is not a member of the
ARB,
the
Complaints
and
Compliance
Committee
of
Independent
Communications Authority of South Africa (ICASA) decides that issue. And
third, it is only after there has been a finding of a breach of the Code that the
licensee must be dealt with in accordance with the applicable provisions of ss 17A
to 17H of the ICASA Act.

[22] Any other interpretation would render meaningless the words, ‘who are not
members of the Advertising Standards Authority of South Africa’ in s 55(2). It is
a settled principle that every word in a statute must be given a meaning and not
be treated as tautologous or superfluous.11 This is buttressed by the provisions of
s 55(1), which enjoins all broadcast service licensees to comply with the Code: it
cannot be suggested that such compliance by licensees who are members of the
ARB, is contractual. Thus, the contention on behalf of Bliss Brands that s 55(2)
only applies to non-members and does not confer on the ARB any statutory power
to determine breaches of the Code by licensees who are its members, because
they are subject to contractual obligations, is incorrect. And a construction that
the obligation on all broadcast service licensees to comply with the Code, and
that the sanctions for its breach are regulated by the ECA, but that breaches of the
Code by licensees who are members of the ARB are regulated contractually, is
plainly insensible.12

[23] Parliament has determined that any advertiser who wishes to advertise by
means of a broadcasting service licensee must comply with the provisions of the

11 Wellworths Bazaars Limited v Chandler’s Limited and Another 1947 (2) SA 37 (A) at 43, affirmed in the
minority judgment of Cameron J in National Credit Regulator v Opperman and Others [2012] ZACC 29; 2013
(2) SA 1 (CC) para 99.
12 Natal Joint Municipal Pension Fund v Endumeni [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.

Code. The order of the high court prevents the ARB from performing this
statutory duty in terms of s 55 of the ECA, by prohibiting the ARB from
determining any complaint in respect of non-member advertising, even where that
advertisement is broadcast by a broadcasting service licensee. It does so in
circumstances where the issue did not arise for determination in the context of the
dispute between the parties.

[24] As regards the powers of the ARB under (a), (b) and (c), the ARB is entitled
to consider, on behalf of its members, complaints in respect of advertisements
published by non-members of the ARB, so that its members may make an election
whether or not they wish to publish that advertisement. This is an incident of their
constitutional rights to freedom of expression and association.13 The high court’s
order prevents the members of the ARB from using their chosen method of
deciding which advertisement they wish to publish and which advertisers they
wish to associate with. This constitutes an unjustifiable limitation on the rights of
members to freedom of expression and association. I revert to this aspect below.

The Herbex decision
[25] Herbex, a seller of complementary medicines, had for a number of years
submitted to the jurisdiction of the ASA, even though it was not a member. It then
sought an order declaring that the ASA’s rulings were legally unenforceable
against non-members. The ASA acknowledged that it had no jurisdiction over
non-members, but argued that it was entitled to make determinations on the
advertisements of non-members for the benefit of its own members.

[26] The high court (Du Plessis AJ) rejected the ASA’s arguments, holding that
it had no lawful power to make rulings on the advertisements of non-members in

13 Section 16(1) of the Constitution states that everyone has the right to freedom of expression, which includes
freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic
creativity; and academic freedom and freedom of scientific research. Section 18 provides that everyone has the
right to freedom of association.

any circumstances, without the consent of the non-member. It made the following
order:
‘It is declared that the respondent [the ASA] has no jurisdiction over any person 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 [Herbex] to participate in its processes, issue an
instruction, order or ruling against the applicant or sanction it.’14

[27] The ASA appealed to this Court. On the day of the hearing the parties
reached a settlement. This Court endorsed the settlement, upheld the appeal and
set aside the high court’s order in substantial part, replacing it as follows:
‘It is declared that:
1.1
The advertising Standards Authority of South Africa (the ASA) has no jurisdiction over
any person or entity who is not a member of the ASA and that the ASA may not, in the absence
of a submission to jurisdiction, require non-members to participate in its processes, issue an
instruction, order or ruling against the non-member or sanction it;
1.2
The ASA may consider and issue a ruling to its members (which is not binding on non-
members) on any advertisement, regardless of by whom it is published, to determine, on behalf
of its members, whether its members should accept any advertisement before it is published or
should withdraw any advertisement if it has been published.
2.
The ASA’s is directed to include in its standard letter of complaint the contents of para
1 and that a non-member is not obliged to participate in any ASA process, but that should it
not participate, the ASA may still consider the complaint, for the purposes set out in para 1.2.’

[28] The whole of clause 3.3 of the ARB’s MOI is taken almost verbatim from
paragraph 1 of this Court’s order in Herbex. It states:
‘The Company has no jurisdiction over any person or entity who is not a member and may not,
in the absence of a submission to its jurisdiction, require non-members to participate in its
processes, issue any instruction, order or ruling against the non-member or sanction it.
However, the Company may consider and issue a ruling to its members (which is not binding
on non-members) regarding any advertisement, regardless of by whom it is published to

14 Herbex (Pty) Ltd v Advertising Standards Authority [2016] 3 All SA 146 (GJ) para 90.

determine, on behalf of its members, whether its members should accept any advertisement
before it is published or should withdraw any advertisement if it has been published.’

[29] The high court declared that clause 3.3 is unconstitutional. It reasoned that
the part of paragraph 1.1 of this Court’s order in Herbex which states that ‘the
respondent [the ASA] has no jurisdiction over any person or entity who is not a
member of the respondent’, is an order in rem, but that paragraphs 1.2 and 2 are
orders in personam, confined to the parties to the settlement agreement, and ‘not
of general application’.

[30] These conclusions are incorrect. The Herbex order, while granted by
consent, is an order of court which is no less binding or effective. A court, in
exercising its discretion whether to make a settlement agreement an order of court
is required to assess the ‘wider impact which its order may potentially have’.15 It
may not simply accept any settlement order proposed by the parties and is
required to ‘act in a stewardly manner’. It has the power to insist on changes to
proposed terms of the settlement and may even reject the settlement outright.16
Once a settlement agreement is made an order of court, it stands to be interpreted
like any other order.17

[31] When a court considers a judgment in rem on appeal, it may not simply set
that judgment aside by virtue of a settlement agreement between the litigating
parties. It must be satisfied that ‘the setting-aside is justified by the merits of the
appeal’.18 This is not a novel principle, but settled law that has consistently been
applied by this Court.19

15 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) para 23.
16 Eke v Parsons fn 15 para 34.
17 Eke v Parsons fn 15 para 29.
18 Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others [2018] ZACC 33; 2019 (5) SA 1
(CC) para 1.
19 Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup Investments (Pty) Ltd and Another [2014] ZASCA 208;
2015 (2) SA 387 (SCA) para 6; The Gap Inc v Salt of the Earth Creations (Pty) Ltd and Others [2012] ZASCA
68; 2012 (5) SA 259 (SCA) para 2.

[32] Applied to the present case, this Court in Herbex was satisfied that on the
merits, setting aside the prohibition on the ASA from deciding whether an
advertisement breached the Code, so as to enable it to determine, on behalf of its
members, whether they should accept an advertisement for publication or
withdraw the advertisement if it has been published, was justified.20
Consequently, the declaratory relief which this Court granted in Herbex – the
whole order – was plainly one in rem: it pronounced upon the limits and powers
of the ASA in relation to every non-member advertiser, not only Herbex.

[33] This conclusion is reinforced by the terms of the order. It granted the ASA
(now the ARB) the power to consider and issue a ruling to its members ‘on any
advertisement, regardless of by whom it is published’, and to determine, on behalf
of its members, whether they ‘should accept any advertisement before it is
published or should withdraw any advertisement if it has been published’. The
addition of the phrase ‘regardless of by whom it is published’, places it beyond
question that the order in Herbex is not confined to the parties in that litigation.

[34] The high court declared that clause 3.3 of the MOI is unconstitutional,
contrary to the order made and precedent established in Herbex. This Court has
emphasised that the doctrine of precedent is ‘an intrinsic feature of the rule of
law’, without which ‘there would be no certainty, no predictability and no
coherence’.21 To deviate from this doctrine is ‘to invite legal chaos’.22 The order
in Herbex ought to have disposed of Bliss Brands’ constitutional challenge.

Constitutional rights: freedom of expression and association
[35] The ARB’s members are entitled to refuse to publish advertising as part of
their right to freedom of expression in s 16 of the Constitution, a right recognised

20 Herbex fn 14 para 17.2.
21 True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) para 100.
22 Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another [2010] ZACC 19;
2011 (4) SA 42 (CC) para 29.

in international law. General Comment No 34 of the United Nations Human
Rights Committee states:
‘Freedom of opinion and freedom of expression are indispensable conditions for the full
development of the person. They are essential for any society. They constitute the foundation
stone for every free and democratic society . . .
Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom
to express one’s opinion necessarily includes freedom not to express one’s opinion.’23

[36] English authority similarly demonstrates that the right to freedom of
thought, opinion and expression, extends to the freedom not to hold and not to
have to express opinions.24 American cases are to the same effect: it is a violation
of the First Amendment to force an individual to be an instrument for advocating
public adherence to an ideological point of view that he or she finds
unacceptable.25 For corporations as for individuals, the right to speak includes
within it the choice of what not to say.26

[37] In Remuszko v Poland,27 the applicant complained that the refusal by a
newspaper to publish a paid advertisement, which was upheld by the courts,
violated his right to freedom of expression protected by Article 10 of the
European Convention on Human Rights.28 The European Court of Human Rights
(ECHR) agreed with the conclusion of the domestic courts that in a pluralistic

23 General Comment No 34 on Article 19 of the International Covenant on Civil and Political Rights (12 September
2011) paras 2 and 10.
24 RT (Zimbabwe) and Others v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State
for the Home Department [2012] 4 All ER 843 para 32.
25 Wooley v Maynard 430 U.S. 705 (1977) at 714.
26 Miami Herald Publishing Co v Tornillo 418 U.S. (1974) 241 at 258; Pacific Gas and Electric Company v Public
Utilities Commission of California 475 U.S. 1 (1986) at 10-11 and 15-17.
27 Remuszko v Poland (Application no 1562/10), 16 July 2013.
28 Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms states:
‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public authority and regardless of frontiers. This
Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and impartiality of the
judiciary.’

media marketplace, publishers should not be obliged to carry advertisements
proposed by private parties, and that this was compatible with the freedom of
expression standards under the Convention.29 The ECHR held:
‘[P]rivately held newspapers must be free to exercise editorial discretion in deciding whether
to publish articles, comments and letters submitted by private individuals or even by their own
staff reporters and journalists. The State’s obligation to ensure the individual’s freedom of
expression does not give private citizens an unfettered right of access to the media in order to
put forward opinions. . . . In the Court’s view these principles apply also to the publication of
advertisements. An effective exercise of the freedom of the press presupposes the right of the
newspapers to establish and apply their own policies in respect of the content of advertisements.
It also necessitates that the press enjoys freedom to determine its commercial policy in this
respect and to choose with whom it deals.’30

[38] The high court distinguished Remuszko on the basis that it was ‘not a case
where the right to commercial activity was completely cut off, as in the case when
an ad alert is issued’. Where an offending advertiser has ignored a reasonable
request for co-operation, the ARB may issue an ad alert to its members, who may
not carry the offending advertisement.

[39] But the finding that the effect of an ad alert is to completely cut off
commercial activity, has no basis in the evidence. The high court concluded that
the ARB’s public power resides in ‘the coercive effect of the ad-alert’, because
the members of the ARB comprise ‘the whole of the print, digital and broadcast
media in South Africa’. There is no such allegation in the founding papers. It was
made for the first time in reply. This is impermissible.31 And the allegation that a
product with offending packaging cannot be offered for sale, was not pleaded in
any of the affidavits. The founding affidavit states that the members of the ARB
comprise ‘major participants in the advertising industry’ and ‘represent a wide

29 Remuszko fn 26 para 86.
30 Remuszko fn 26 para 79.
31 Director of Hospital Services v Mistry 1979 (1) SA626 (A) at 635H-636F.

cross-section of the advertising media, agencies and marketers’. In its answering
affidavit, the ARB expressly denied that its members represent the entire
advertising industry and set out its membership, which comprises six members
and their members.

[40] Even on Bliss Brands’ version, the effect of an ad alert issued by the ARB
is that ARB members will decline to publish that particular advertisement. It
remains open to the advertiser to publish that advertisement on any platform
unconnected to the ARB, for example, on its own website, on social media
including Facebook or Instagram, or through any advertising or media house
which is not a member of the ARB.

[41] The ARB’s power to consider complaints relating to advertisements by
non-members for the benefit of its own members, advances the right to freedom
of association. The Constitutional Court has held that the right of association,
‘enables individuals to organise around particular issues of concern’ and permits
a group ‘to collectively contest and ameliorate the structure of social power
within its midst’.32

[42] This is precisely what the members of the ARB have done. They have
organised around the shared goal of promoting ethical standards in advertising,
as reflected in the Code. They have agreed to collectively delegate decision-
making to the ARB’s expert adjudicative bodies that determine complaints on
their behalf. In doing so, the ARB’s members have given effect to two important
components of the s 18 right: the right of self-regulation; and the right to choose
not to associate.

32 National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7;
2020 (6) BCLR 725 (CC); (2020) 41 ILJ 1846 (CC) at 737.

[43]  The right to self-regulation includes the right of associations to adopt rules
and standards to regulate their conduct in their dealings with the outside world.33
In Datafin,34 Sir John Donaldson MR explained this type of self-regulation as
follows:
‘Self-regulation . . . can connote a system whereby a group of people, acting in concert, use
their collective power to force themselves and others to comply with a code of conduct of their
own devising. This is not necessarily morally wrong or contrary to the public interest, unlawful
or even undesirable.’

[44] Datafin has frequently been cited by our courts as a leading authority on
the judicial review of private bodies.35 It concerned the Panel on Takeovers and
Mergers which, like the ARB, exercises public powers primarily based in
contract. The Panel’s Code lacks the force of law but states that those wishing to
take advantage of securities markets in the United Kingdom should conduct
themselves according to its Code, and that those who do not conduct themselves
in this way cannot expect to enjoy the facilities of the securities markets and may
find that those facilities are withheld. The court observed that despite the lack of
any authority de jure, the Panel,
‘. . . exercises immense power de facto by devising, promulgating, amending and interpreting
the City Code on Take-overs and Mergers, by waiving or modifying the application of the code
in particular circumstances, by investigating and reporting on the alleged breaches of the code
and by the application or threat of sanctions. These sanctions are no less effective because they
are applied indirectly and lack a legally enforceable base.’36

33 The African Commission on Human and People's Rights has acknowledged self-governance as an essential
component of freedom of association. The ‘Guidelines on Freedom of Association and Assembly in Africa’, para
36(a) state: ‘Associations shall be self-governing and free to determine their . . . internal accountability
mechanisms and other internal governance matters’.
34 R v Panel on Takeovers and Mergers, ex parte Datafin plc and Another (Norton Opax plc and Another
intervening) [1987] 1 All ER 564 at 567.
35 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) para 32;
Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry
and Another [2010] ZASCA 94; 2010 (5) SA 457 (SCA) para 25.
36 Datafin fn 33 at 564.

[45] The ARB exercises similar powers, save that its powers in respect of non-
members are circumscribed. As was held in Herbex, absent a submission to
jurisdiction, the ARB may only make rulings on the advertisements of non-
members for the benefit of its own members, which are not binding or legally
enforceable against non-members. The impact of ARB rulings on non-members
is therefore indirect, in cases where they engage the services of an ARB member
to approve, create, disseminate or publish their advertising. Members of the ARB
are bound to comply with the Code and ARB decisions, and are obliged to decline
to approve, create or carry advertisements that breach the Code. Non-members
who do not wish to meet the ethical standards contained in the Code are free to
approve, create and publish their advertising using the services of non-members
of the ARB.

[46] The right of association includes the right to dissociate, as the
Constitutional Court has recently held:
‘In sum, choosing to associate is an exercise of the right to freedom of association. Choosing
to dissociate from that which you earlier associated with is also an exercise of that right.
Choosing not to associate at all too is an exercise of the right. A restraint on any of these choices
is a negation of the right.’37

[47] These rights of association and dissociation entitle every individual
member of the advertising industry to choose what advertisers they wish to
associate with and what advertisements they approve, create or carry, subject to
certain legal limits. This is what the members of the ARB have done.

[48] In turn, Bliss Brands and other non-members have exercised their right to
dissociate by choosing not to join the ARB. They are free to make that election.
Having done so, Bliss Brands cannot now demand that members of the ARB

37 New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2020] ZACC
11; 2020 (6) SA 257 (CC) para 58.

should ignore their contractual obligations by carrying advertisements that breach
the Code. Nor can Bliss Brands lawfully demand that the ARB may not issue
rulings for the guidance of its members. In short, the right to dissociate does not
give Bliss Brands the unfettered right to dictate to the ARB and its members how
they should exercise their rights of association.

Access to court
[49] The remaining constitutional challenges can be dealt with shortly. They are
all variations on a theme: the ARB’s processes infringe the right of non-members
of access to court under s 34 of the Constitution,38 and usurp judicial functions in
various respects. The high court held that ‘a constraint on the right to trade freely
on the scale precipitated by an ad alert is inherently an infringement of the rights
of the person and property and entails the protections under section 34’.

[50] The existence of an adjudicative administrative tribunal such as the ARB
does not however limit the right of access to courts. It is a ‘tribunal or forum’
envisaged in s 34 of the Constitution.39 Its decisions are subject to judicial control
at two levels. First, a dissatisfied respondent is entitled to apply to court for an
interdict suspending the operation of a decision pending a challenge (as Bliss
Brands did in this case). Second, once internal processes are concluded, decisions
of the ARB are subject to judicial review.40 And that is precisely what Bliss
Brands did in this case – it took the decisions adverse to it on review.

[51] In this regard, the high court’s reliance on Chief Lesapo41 was misplaced.
The case involved a constitutional challenge to a legislative provision which
permitted a bank to seize a defaulting debtor's property, sell it by public auction

38 Section 34 of the Constitution provides:
‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’
39 Metcash Trading Limited v Commissioner, South African Revenue Service and Another 2001 (1) SA 1109 (CC)
para 47.
40 Metcash fn 35 paras 58, 60 and 62.
41 Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC).

and defray the debt owed, without recourse to a court of law. The statute was
struck down on the ground that it rendered the bank a judge in its own cause and
breached the fundamental principle against self-help in circumstances where the
coercive power of the State was invoked without the sanction of a court. By
contrast, the ARB’s decision-making processes are strictly governed by the Code,
the MOI and its internal procedures. Its adjudicative procedures, with rights of
appeal before bodies that include legal practitioners and retired judges, are the
very antithesis of self-help. As with any completed administrative process that
adversely affects a person’s rights, a dissatisfied person may approach a court to
review decisions taken by the ARB’s adjudicative bodies. This is a right
guaranteed by ss 33 and 34 of the Constitution.

[52] The high court upheld the complaint by Bliss Brands that the AAC and
FAC lack independence due to the funding model which, the court held, ‘creates
room for the perception of a lack of independence where the complainant is a
funder and a member and the respondent is a non-member’, and in the nomination
process for members of the AAC and FAC.

[53] This finding however is insupportable on the evidence. Not every member
of the ARB is a member or funder of, or contributor to, the ARB. On both these
committees only one member represents a funder, and not every member of the
AAC or FAC is a funder. No reasonable, objective and informed person would
consider it likely that the few funders (who are almost exclusively individual
companies) influence the running of the entire ARB. Funders represent a
minority: 38 out of more than 335 direct and indirect national and international
members of the ARB. The members of the AAC or FAC are not informed as to
whether or not a complainant or respondent is a funder. Further, the structure of
the committees promotes independence: the Chairperson of the AAC must be an

independent practising advocate; and the chairperson of the FAC, an independent
practising or retired legal practitioner or judge.

[54] The high court concluded that the procedures of the ARB lack fairness
because the ‘Procedural Guide makes no provision for the rules of evidence . . .
applicable to court proceedings’, and no appeal to a court lies against a decision
of the ARB. Then it said that a non-member is ‘denied the right to defend itself
in a court of law on the merits of the complaint’, and that ‘a determination by the
ARB as to whether clauses 8 and 9 [of the MOI] have been breached impliedly
ousts the jurisdiction of the ordinary courts by establishing a parallel dispute
resolution process’.

[55] The court erred. No dissatisfied respondent in an adjudicative
administrative process is entitled to ‘appeal’ to a court against an administrative
decision – the remedy is to review under PAJA. There is no principle of law
requiring an adjudicative administrative tribunal to adopt the same rules of
evidence that apply in courts. In Turner42 Botha JA said:
‘The principles of natural justice do not require a domestic tribunal to follow the procedure and
to apply the technical rules of evidence observed in a court of law, but they do require such
tribunal to adopt a procedure which would afford the person charged a proper hearing by the
tribunal, and an opportunity of producing his evidence and of correcting or contradicting any
prejudicial statement or allegation made against him.

[56] The high court seems to have overlooked the flexible requirements of
procedural fairness under PAJA. Section 3(2)(a) provides that ‘[a] fair
administrative procedure depends on circumstances of each case’. Section 3(4)
permits departures from requirements of procedural fairness under s 3(2) where
this is reasonable or justifiable. Section 3(5) of PAJA permits an administrator to
follow a procedure that is ‘fair but different’ to the requirements of s 3(2).

42 Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 646F.

[57] Finally, on this aspect, the high court stated that an ad alert ‘has all the
features of an indirect boycott’, which it said was relevant to a consideration of
the constitutionality of the ARB’s process because of the element of unfairness.
The fact that an ad alert has the effect of a boycott was not pleaded and therefore
not traversed in the affidavits before the high court.

[58] The high court held that the issues raised by clauses 8 (exploitation of
advertising goodwill) and 9 (imitation) of the Code are squarely legal issues
which entail the same enquiries as those which courts are called upon to consider
in cases dealing with passing off and contraventions of copyright and trade marks.
However, the mere fact that elements of a complaint before the ARB might
overlap with elements of a cause of action that could be pursued in a court or
other tribunal, does not mean that the ARB ousts the court’s jurisdiction.43 The
ARB and the courts are different fora with distinct powers. The ARB operates
consensually and is not permitted to determine questions as to whether the
packaging or get-up of a particular product constitutes passing off or breach of
copyright. The ARB may only determine whether its Code has been breached. It
does not exercise a judicial function when doing so.

Conclusion
[59] In the result the following order is made:
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 following:
‘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.’

43 Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) paras 20 and 21.

The relief sought by the applicant in paragraphs 2, 3 and 7 of its amended
notice of motion is remitted to the Gauteng Division of the High Court,
Johannesburg for determination.

__________________
A SCHIPPERS
JUDGE OF APPEAL

Appearances:

For first appellant:
S Budlender SC (with him N Ferreira, K Harding and
K Mvumu)
Instructed by:
Fairbridges Wertheim Becker Attorneys, Johannesburg

E G Cooper Majiedt Inc, Bloemfontein

For second and
third appellants:

G Marcus SC (with him C McConnachie)
Instructed by:

Kisch Africa Inc, Sandton

Phatshoane Henney Attorneys, Bloemfontein

For respondent:

C D A Loxton SC (with him F Southwood SC)

Instructed by:

Eversheds Sutherland (SA) Inc, Johannesburg

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
12 April 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal.
Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd [2022] ZASCA 51
Today the Supreme Court of Appeal (SCA) upheld with costs an appeal by the appellant, the
Advertising Regulatory Board NPC (ARB), against a series of orders issued by the Gauteng
Division of the High Court, Johannesburg (the high court), which effectively dismantled the
system of self-regulation of advertising in South Africa. The ARB is an independent, self-
regulatory body in the advertising industry. Its members are required to comply with the Code
of Advertising Practice (the Code), based on international best practice for advertising self-
regulation. The main objects of the Code are the protection of consumers and professionalism
amongst advertisers. In terms of section 55 of the Electronic Communications Act 36 of 2005
(ECA), all broadcast service licensees are required to adhere to the Code as administered by
the ARB.
In 2019 the second appellant, Colgate-Palmolive (Pty) Ltd (Colgate) lodged a complaint with
the ARB that the respondent, Bliss Brands (Pty) Ltd (Bliss Brands), in packaging its Securex
soap, had breached the Code by exploiting the advertising goodwill and imitating the packaging
architecture of Colgate’s Protex soap. Although Bliss Brands is not a member of the ARB, it
raised no objection to the ARB’s jurisdiction and participated fully in its hearings. The
Directorate of the ARB dismissed the complaint. Colgate appealed to the Advertising Appeals
Committee which overturned the Directorate’s decision. Bliss Brands unsuccessfully appealed
to the Final Appeals Committee (FAC) of the ARB, which made a ruling that Bliss Brands

cease distribution of the offending Securex packaging. Bliss Brands then launched an
application in the high court for an interdict suspending the FAC’s ruling, pending its
application for an order to review and set aside that ruling.
The high court, of its own accord, questioned the constitutionality of the ARB’s powers,
resulting in a fundamental change to the relief sought by Bliss Brands. It then sought orders
declaring that clause 3.3. of the Memorandum of Incorporation of the ARB (MOI), which
allows the ARB to consider any advertisement and advise its members whether they should
accept or withdraw it, is unconstitutional and void; that the ARB has no jurisdiction over
persons who are not its members and cannot issue any rulings in relation to non-members’
advertising; and that the rulings of the FAC are unlawful. The high court granted these orders.
It found that the ARB’s powers are not sourced in law; that it may not consider complaints
concerning advertising by non-members under section 55 of the ECA; that an ad alert (in terms
of which members of the ARB may not approve or carry advertisements that breach the Code),
is a violation of the section 34 constitutional right of access to courts; that the ARB may be
perceived as lacking independence; that its processes are unfair; and that it deals with legal
issues that ousts the jurisdiction of the courts.
The SCA set aside the high court’s orders. It held that a court should of its own accord raise a
constitutional issue only in exceptional circumstances. This is not such a case. Bliss Brands
had submitted to the ARB’s jurisdiction. That should have put paid to any constitutional
challenge. The SCA held that the ARB’s powers are sourced in law. The Promotion of
Administrative Justice Act 3 of 2000 (PAJA) expressly contemplates that a juristic entity other
than an organ of state may take decisions that constitute administrative action, in terms of an
‘empowering provision’ which includes an agreement, instrument or other document. The
ARB’s MOI and Code constitute empowering provisions. The ARB is authorised under section
55 of the ECA to determine breaches of the Code by its members.
The high court erred in holding that clause 3.3 of the MOI is unconstitutional. This finding is
at odds with the decision in Advertising Standards Authority v Herbex (Pty) Ltd [2017] ZASCA
132; 2017 (6) SA 354 (SCA), in which it was held that the Advertising Standards Authority
(now the ARB) was empowered to consider and issue a ruling to its members on any
advertisement, in order to advise them whether they should accept or withdraw such
advertisement. The latter power, the SCA held, advances the rights to freedom of expression
in section 16, and association in section 18 of the Constitution. For corporations as for

individuals, the right to speak includes within it the choice of what not to say. In a pluralistic
media marketplace, publishers should not be obliged to carry advertisements proposed by
private parties. It is open to Bliss Brands to publish its advertisements on any platform
unconnected to the ARB. In exercising their right to association, the members of the ARB have
given effect to two components of this right: self-regulation and the right to choose not to
associate. Members of the ARB have organised around a shared goal of promoting ethical
standards in advertising, as reflected in the Code. The rights of association and dissociation
entitled members of the advertising industry to choose what advertisers they wish to associate
with and what advertisements they approve or carry, subject to certain legal limits. In turn,
Bliss Brands and other non-members have exercised their right to dissociate by choosing not
to join the ARB, as they are entitled to do.
The SCA concluded that the ARB is a ‘tribunal or forum’ envisaged in section 34 of the
Constitution. Consequently, its decisions are subject to control at two levels: a dissatisfied
respondent is entitled to apply to court for an interdict suspending the operation of a decision
pending a challenge; and the ARB’s decisions are subject to judicial review. That is precisely
what Bliss Brands did in this case. There is accordingly no violation of the section 34 right.
The SCA held that the high court’s finding that the ARB may be perceived to lack
independence, had no basis in the evidence; and that in finding that the procedures of the ARB
lack fairness, the court overlooked the flexible requirements of procedural fairness under
PAJA. The SCA said that the mere fact that elements of a complaint before the ARB might
overlap with elements of a cause of action that can be pursued in a court, does not mean that
the ARB ousts the court’s jurisdiction. The ARB and the courts are different fora with distinct
powers. For these reasons, the high court’s orders were set aside and the review application
brought by Bliss Brands was remitted to that court for determination.