Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd

The Advertising Regulatory Board (ARB) is a non-profit company operating as an independent self-regulatory body in the advertising industry. Its members must adhere to the Code of Advertising Practice. All advertising in electronic broadcast media is subject to the Electronic Communications Act 36 of 2005 (ECA), which requires every electronic broadcaster to adhere to the ARB's Code. In December 2019, Colgate-Palmolive lodged a complaint with the ARB that Bliss Brands, a competitor, had breached the Code by exploiting advertising goodwill and imitating the packaging of Colgate's Protex soap with its Securex soap. Although Bliss Brands was not a member of the ARB, it raised no objection to the ARB's jurisdiction and participated fully in the hearings through to the Final Appeal Committee (FAC). After the FAC dismissed its appeal, Bliss Brands applied to the High Court to review and set aside the FAC's decision. The High Court (Fisher J) mero motu raised questions about the constitutionality of the ARB's powers, prompting Bliss Brands to fundamentally amend its application to challenge the entire regulatory framework. The High Court declared clause 3.3 of the ARB's Memorandum of Incorporation unconstitutional and made orders that effectively dismantled the self-regulatory system for advertising.

• Whether a court should raise constitutional issues mero motu when not pleaded by parties
• Whether Bliss Brands' participation in ARB processes constituted submission to jurisdiction
• Whether the ARB has jurisdiction to consider complaints relating to advertising by non-members
• Whether the ARB's powers are sourced in law and constitutional
• Whether clause 3.3 of the ARB's Memorandum of Incorporation is constitutional
• Whether the ARB's processes infringe the right of access to courts under section 34 of the Constitution
• Whether the ARB structures lack independence and follow unfair procedures
• Whether the ARB usurps judicial functions by determining matters that could be decided by courts

1. The appeal was upheld with costs, including costs of two counsel. 2. The High Court order was set aside and replaced with an order dismissing relief sought in paragraphs 1, 4, 5, 6 and 8 of the applicant's amended notice of motion with costs, including costs of two counsel. 3. Relief sought in paragraphs 2, 3 and 7 of the amended notice of motion was remitted to the High Court for determination.

1. Courts should decide only issues defined by the parties in their pleadings and should raise constitutional issues mero motu only in exceptional circumstances, which did not exist in this case. 2. Participation in proceedings without objection to jurisdiction, accepting favourable rulings and appealing adverse ones constitutes submission to jurisdiction. 3. Private bodies may exercise public functions based on empowering provisions including contracts, MOIs and codes of conduct, without requiring statutory authorization. PAJA contemplates this through its definition of 'empowering provision'. 4. The ARB is empowered to consider complaints about non-member advertisements for the benefit of its members, to enable members to decide whether to publish such advertisements, as confirmed in the Herbex precedent which established binding precedent in rem. 5. Clause 3.3 of the ARB's MOI, taken from the Herbex order, is constitutional. 6. Self-regulatory bodies like the ARB advance constitutional rights to freedom of expression (s 16) and freedom of association (s 18), including rights to self-regulation and to choose not to associate. 7. Administrative tribunals like the ARB do not limit access to courts under s 34 as they are 'tribunals or forums' contemplated by that section, and their decisions remain subject to judicial review. 8. Administrative tribunals need not follow court rules of evidence; procedural fairness under PAJA is flexible and context-dependent. 9. The mere fact that elements of a complaint before the ARB might overlap with causes of action that could be pursued in court does not mean the ARB ousts court jurisdiction.

The Court observed that the High Court's finding that the ARB's members comprise 'the whole of the print, digital and broadcast media in South Africa' had no basis in evidence and was impermissibly raised for the first time in reply. The Court noted that even on Bliss Brands' version, an ad alert only means ARB members will decline to publish a particular advertisement, but it remains open to the advertiser to publish on platforms unconnected to the ARB, such as its own website, social media, or through non-member advertising houses. The Court commented that the High Court's reliance on Chief Lesapo was misplaced as that case involved statutory self-help mechanisms rendering a bank judge in its own cause, whereas the ARB's processes are the antithesis of self-help, with structured adjudicative procedures and rights of appeal. The Court observed that the directive from Fisher J resulted in a fundamental change to the relief sought by Bliss Brands and the case bore little resemblance to the original application, effectively creating an entirely new case for decision.

This judgment is significant for affirming the constitutional validity of self-regulatory bodies in South Africa that exercise public functions without statutory authorization. It establishes that such bodies can derive their powers from contracts, MOIs and codes of conduct that constitute 'empowering provisions' under PAJA. The judgment reinforces the doctrine of submission to jurisdiction and limits courts' power to raise constitutional issues mero motu. It affirms that self-regulatory systems advance constitutional rights to freedom of expression and association, including the right not to publish certain content and to choose with whom to associate. The decision protects the advertising self-regulatory framework and confirms that similar private bodies performing public functions (sports bodies, professional associations, Press Council) operate lawfully. It clarifies the interpretation of section 55 of the Electronic Communications Act regarding the ARB's powers over broadcasting licensees. The judgment emphasizes the importance of parties defining issues for determination and courts adhering to the doctrine of precedent to maintain legal certainty and the rule of law.