The Advertising Standards Authority v Herbex (Pty) Ltd

The Advertising Standards Authority of South Africa (ASA), a voluntary, industry-funded self-regulatory body, adjudicates complaints under its Advertising Code, which contractually binds its members. Herbex (Pty) Ltd, a marketer of complementary medicines, was not a member of the ASA. Despite this, the ASA entertained complaints about Herbex’s advertising, issued rulings against it, published those rulings, and required Herbex to pay appeal fees. Herbex contended that it had been misled into participating in ASA processes and challenged the ASA’s jurisdiction over non-members. The Gauteng Division of the High Court granted wide declaratory and interdictory relief in favour of Herbex. The ASA appealed to the Supreme Court of Appeal, where the parties reached agreement on the merits, leaving only the scope of the substituted order and costs to be determined.

The appeal was upheld in part. Most of the High Court’s order was set aside and replaced with a declaration that the ASA has no jurisdiction over non-members but may consider complaints and issue rulings to its members that are not binding on non-members. The ASA was directed to clarify this position in its standard complaint letters. Each party was ordered to pay its own costs on appeal, while the costs order of the court a quo remained intact.

This case clarifies the limits of the powers of private self-regulatory bodies in South Africa, confirming that they cannot exercise coercive authority over non-members while affirming their ability to regulate indirectly through contractual obligations binding their members. It is an important authority on jurisdiction, consent, and the legal status of industry self-regulation, particularly in the advertising and media context.