CONSTITUTIONAL COURT OF SOUTH AFRICA

Bliss Brands (Pty) Ltd v Advertising Regulatory Board

and Others

CCT 132/22

Date of Judgment: 26 June 2023

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MEDIA SUMMARY
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The following explanatory note is provided to assist the media

in reporting this case and is not binding on the Constitutional
Court or any member of the Court.

This matter was an application for leave to appeal against

an order of the Supreme Court of Appeal (SCA) which
overturned a decision of the High Court, Pretoria. The
application concerned the powers exercised by the
Advertising Regulatory Board NPC (ARB) over entities
who are not members of the ARB and have not agreed to be
bound by the ARB’s memorandum of incorporation (MOI)
or the Code of Advertising Practice (Code).

The applicant was Bliss Brands (Pty) Ltd (Bliss), a

company which sells cleaning and hygiene products. The
applicant was not a member of the ARB. The first
respondent was the ARB, a non-profit company which
tookover the regulation of advertising from the Advertising
Standards Authority of South Africa (ASA). This is in
terms of section 55 of the Electronic Communications Act
36 of 2005 (ECA). The second respondent is Colgate-
Palmolive (Pty) Ltd, a South African company. The third
respondent is Colgate-Palmolive Company, an American
company that distributes its products in South Africa
through the second respondent. The applicant and the
second and third respondents, at the time of the litigation,
were competitors in the soap bar market.

The ARB made certain disciplinary rulings against Bliss

arising from complaints by Colgate in relation to the
packaging of Bliss’s Securex soap bar, which bears
similarities to Colgate’s competing Protex soap bar. Bliss
was successful at the first leg of the adjudication of
Colgate’s complaint, but failed in two internal appeals
thereafter. The effect of the ARB’s final ruling was that
Bliss may no longer sell its soap using its then current
packaging. After exhausting the ARB’s internal appeal
process, Bliss approached the High Court for relief.

In sum: the High Court found in favour of Bliss Brands;

while the Supreme Court of Appeal reversed the High
Court on appeal, holding in favour of the ARB. Bliss
Brands then appealed to the Constitutional Court. Bliss
Brands levelled a number of arguments in challenging the
ARB’s imposition of indirect jurisdiction over non-
members, ranging from its participation of as non-member
of the ARB in ARB processes not amounting to “true”
consent to the ARB’s jurisdiction, through to infringements
of the fundamental rights to freedom of association,
freedom of expression and access to courts enshrined in the
Constitution.

In a unanimous judgment, penned by Madlanga J (and

concurred in by Zondo CJ, Kollapen J, Madlanga J, Majiedt
J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and
Theron J), the Constitutional Court recognised that the
matter concerned issues of a constitutional and
administrative law nature that reach beyond the role players
in the dispute, but adopted a minimalist approach as
articulated by the Court in Albutt v Centre for the Study of
Violence and Reconciliation [2010] ZACC 4.

Bliss Brands’ correctly conceded during the hearing that

that if the Constitutional Court were to hold that
Bliss Brands did consent to the ARB’s jurisdiction, that
would be dispositive of the matter. The springboard for all
the grounds of appeal is the idea that the ARB was not
entitled to exercise its jurisdiction over Bliss Brands. On
this score, Bliss Brands contended that it could not have
consented to the jurisdiction of the ARB in any true sense,
as the effect of an ad-alert was that ARB members may not
accept the advertisement in issue from the non-member
concerned or, if the advertisement has already been
accepted and published, must withdraw the publication.
Thus, any refusal to submit to the jurisdiction of the ARB
would have no effect: Bliss Brands would have been
adjudged and suffered the consequences either way.

On the existing law, and without upsetting the factual

findings made by the Supreme Court of Appeal in line with
Makate v Vodacom (Pty) Ltd [2016] ZACC 13, the Court
determined that this argument by Bliss Brands did not hold
up to scrutiny. Madlanga J held, in the first place, that non-
submission by a nonmember to the ARB’s jurisdiction does
have a “result” which is materially different to that which
would flow from submission to the ARB’s jurisdiction: if
there is no submission, the ARB’s members may not carry
the impugned advertisement but there is nothing to stop the
non-member from continuing to advertise in media
belonging to nonmembers and from continuing to use the
impugned packaging. Where the non-member submits to
the ARB’s jurisdiction, by contrast, the ARB can make
directions which are binding on the non-member.

Secondly, the judgment pointed out that one cannot

discount the possibility that some nonmembers participate
in the proceedings willingly, thus submitting to the ARB’s
jurisdiction. The question whether a non-member has
submitted to the ARB’s jurisdiction depends on the facts:
what did the non-member do or not do? In this case, as the
Supreme Court of Appeal held (premised on its factual
findings), the letter that advised 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”.
Bliss Brands rendered a detailed response to the merits of
the complaint without any objection to the ARB’s
jurisdiction. The letter from Bliss Brands’ attorneys not
only fully addressed the merits of the complaint but also
concluded with a request that, if the Directorate found that
Securex was in contravention of the Code and directed
Bliss Brands to withdraw or amend its product packaging,
Bliss Brands be permitted six months from the date of the
ruling in which to do so. The Constitutional Court
pronounced that this was an unambiguous intimation by
Bliss Brands that it was submitting itself to the ARB’s
jurisdiction. Madlanga J, for the Court, reasoned further
that the conclusion that Bliss Brands had subjected itself to
the ARB’s jurisdiction was borne out by its conduct: (a) it
participated in all stages of the ARB proceedings without a
whimper of protest; (b) it was content with the
Directorate’s finding (the first instance finding) which was
in its favour; (c) when the AAC upheld Colgate’s appeal,
Bliss Brands appealed on the merits to the FAC; and (d) in
the review application, Bliss Brands, inter alia, sought
remittal to the FAC in the event of the prayer for a
substituted decision being unsuccessful.

The Constitutional Court concluded that Bliss Brands

cannot succeed on its consent to jurisdiction argument – as
it plainly did accept the jurisdiction of the ARB in this case.
Its consent to jurisdiction point was dispositive of the
dispute; and because the point was not arguable, leave to
appeal was refused. The following order was made:
“Leave to appeal is refused with costs, including the costs
of two counsel.”