IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO. 268/2020

In the matter between:

ADVERTISING STANDARDS AUTHORITY (A.S.A) APPLICANT

and

PORTER’S PLUMBING SERVICE (PTY) LTD RESPONDENT

FILING NOTICE
___________________________________________________________________

BE PLEASED TO TAKE NOTICE THAT the Respondent’s Heads of Argument is

filed herewith.

DATED at JOHANNESBURG on this 20th day of MARCH 2020.

______________________________
BL MVINJELWA
COUNSEL FOR THE RESPONDENT
JOHANNESBURG

1
TO: THE REGISTRAR
HIGH COURT
PRITCHARD STREET
JOHANNESBURG

AND TO: ADVERTISING STANDARDS AUTHORITY

360 ELIZABETH STREET
OLIVEDALE
JOHANNESBURG

2
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO. 268/2020

In the matter between:

ADVERTISING STANDARDS AUTHORITY (A.S.A) APPLICANT

and

PORTER’S PLUMBING SERVICE (PTY) LTD RESPONDENT

RESPONDENT’S HEADS OF ARGUMENT

___________________________________________________________________

A. INTRODUCTION:

1. In this application the Applicant seeks to interdict the Respondent from

advertising in the “Yellow Pages” claiming that the advertisement is
misleading and deceptive.1

B. FACTS:

2. The Applicant is the Advertising Standards Authority, an independent

voluntary association that was founded to promote and enforce standards in
the advertising industry.

3. The Respondent is Porter’s Plumbing Service (Pty) Ltd, a plumbing services

company with its registered office and principal place of business situated at 1
Russell Street, Midrand, Gauteng.2

1
Page 4, par. 5(b) – affidavit of Andrew Ashton.
2
Page 3, par. 4(a) – affidavit of Andrew Ashton.

3
4. The Respondent started advertising its plumbing business in the “Yellow
Pages” about a year ago.3

5. The Applicant has received two complaints from customers, one from a
resident in Morningside4 and the other from Ms. Carmen Costa.5

6. After receiving the complaint in Morningside, the Applicant wrote to the

Respondent requesting that the advertisement be withdrawn on the basis that
it was misleading and deceptive.6

7. As a result, the Respondent sought legal advice from an attorney who

informed that the advertisement was “OK”. 7

8. The Respondent rendered plumbing services to Ms. Carmen Costa after she
saw the advertisement in the “Yellow Pages” marked as “CC1” to her
affidavit.8

9. After the services were rendered, Ms. Costa informed the Respondent that
she was happy, that the plumber was great and that she had no complaints
about the job.9

10. Ms. Costa agrees that the job was well done and completed without having to
get a new part.10

C. THE ISSUE:

11. The Respondent raises two points in limine:

11.1 The locus standi of the Applicant;

3
Page 10, par.4 – affidavit of Peter Porter.
4
Page 4, par 5(a) – affidavit of Andrew Ashton.
5
Page 7, par. 8 – affidavit of Carmen Costa.
6
Page 4, par. 5(b) – affidavit of Andrew Ashton.
7
Page 11, par 6 – affidavit of Peter Porter.
8
Page 8 – annexure “CC1”.
9
Page 11, par. 9 – affidavit of Peter Porter.
10
Page 7, par. 7 – affidavit of Carmen Costa.

4
 11.2 Non-joinder of a party, the “Yellow Pages”.

12. Apart from the points in limine, the Honourable Court has to decide whether
the requirements for granting a final interdict have been met.

13. These are:

(a) A clear right;
(b) An injury actually committed or reasonably apprehended, and;
(c) The absence of similar protection by any other ordinary remedy. 11

D: LOCUS STANDI OF THE APPLICANT

14. The Applicant has been recognised as the official regulator of the advertising
industry and prides itself upon its close association with organs of State and
consumer organisations, investigating complaints and bearing the interests of
consumers and children in particular, in mind.12

15. However, the Applicant makes no reference of jurisdiction in the founding

affidavit of Andrew Ashton13 to bring the application against the Respondent.

16. It is respectfully submitted that the Applicant has no jurisdiction in respect of

the Respondent as membership of the Applicant is voluntary.

17. Members are voluntarily bound by the Applicant’s guiding conduct, the Code
of Advertising Practice (“the Code”).14

18. Although all broadcast-service licenses have to comply with the Code in
accordance with Section 55 of the Electronic Communications Act 36 of 2005
(“ECA”), where the licensee is a member of the Applicant, it can only consider

11
Setlogelo v Setlogelo 1914 AD 221.
12
Brandhouse Beverages (Pty) Ltd v Advertising Standards Authority of South Africa and others (2015)
ZAGPPHC 243 (GP 2331/15) at par. 28.
13
Page 3 – affidavit of Andrew Ashton.
14
Herbex (Pty) Ltd v Advertising Standards Authority 2016 (5) SA 557 at page 560, par.4.

5
 complaints regarding alleged breaches of the Code due to its contractual
relationship with the licensee.15

19. The “ECA” therefore does not confer the authority to regulate advertisements
published by non-members.

20. In relation to the second point in limine:

20.1 Rule 10 of the Uniform Rules of Court provides that any person with a
direct and substantial interest may be joined either as an applicant or
respondent.

20.2 It is clear that the “Yellow Pages” have a direct and substantial interest
in this matter as the granting of an interdict against the Respondent will
have consequences for the “Yellow Pages” and the printing thereof. 16

E. A CLEAR RIGHT:

21. The Applicant must establish a prima facie right.

22. The Consumer Protection Act 68 of 2008 (“the CPA”) determines the standard
to which all advertisements should comply.

23. The “CPA” provides that a service provider must not market any goods or
services in a manner that is reasonably likely to imply false or misleading
representation concerning those goods or services or in a manner that is
misleading, fraudulent or deceptive in any way.17

24. The “CPA” further provides that in marketing of goods or services, the
suppliers must not, by words or conduct directly or indirectly express or imply

15
Herbex supra fn 14 at page 561, par.7.
16
Page 5, par. 10 – affidavit Andrew Ashton.
17
Section 29 of the Consumer Protection Act 68 of 2008.

6
 false, misleading or deceptive representation concerning a material fact to a
consumer.18

25. Section 4 of the “CPA” allows any person to approach a court, the Tribunal or
the Commission alleging that their rights as a consumer have been infringed.

26. The process that is to be followed is provided for by Section 69 of the “CPA”
and specifically provides in Section 69(d) that a court that has jurisdiction can
be approached if all other remedies available to that person have been
exhausted.

27. Although the Applicant states that two complaints had been received, no
further mention is made of any process/es utilised in terms of any legislation
or otherwise.

F: AN INJURY ACTUALLY COMMITTED OR REASONABLY

APPREHENDED:

28. It is respectfully submitted that the Applicant has not shown that any injury
has been committed or reasonably apprehended.

29. Ms. Costa complained to the Applicant indicating that she was not happy with
the advertisement19 which is in direct conflict to her affidavit which fails to
mention this.20

G: ABSENCE OF ALTERNATIVE REMEDY:

30. It is respectfully submitted that the Applicant has created a sense of urgency
as a result of its failure to follow the legislative processes as provided for by
the “CPA”.21

18
Section 41 of the Consumer Protection Act 68 of 2008.
19
Page 3, par. 3 – affidavit Andrew Ashton.
20
Page 6 – affidavit Carmen Costa.
21
The Consumer Protection Act.

7
31. The Applicant has been aware of a complaint from a resident from
Morningside for a year.22

32. It is therefore respectfully submitted that on this requirement, the application

must fail.

H: CONCLUSION

33. In the premises it is therefore respectfully prayed that the Honourable Court
dismiss the Applicant’s application for an interdict.

______________________________
BL MVINJELWA
COUNSEL FOR THE RESPONDENT
JOHANNESBURG

IN THE HIGH COURT OF SOUTH AFRICA

22
Page 4, par. 5(a) affidavit – Andrew Ashton.

8
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO. 269/2020

In the matter between:

ADVERTISING STANDARDS AUTHORITY (A.S.A) APPLICANT

and

PORTER’S PLUMBING SERVICE (PTY) LTD RESPONDENT

RESPONDENT’S LIST OF AUTHORITY

___________________________________________________________________

LEGISLATION:

1. Consumer Protection Act 68 of 2008.

2. Electronic Communications Act 36 of 2005.

CASE LAW:

1. Brandhouse Beverages (Pty) Ltd v Advertising Authority of South Africa and

Others (2015) ZAGPPHC (GP 2331/15).

2. Herbex (Pty) Ltd v Advertising Standards Authority 2016 (5) SA 557.