Until the matter is finalised as a matter of law, the ASA cannot therefore consider the subject matter of the
complaint in terms of a selfregulatory Code."
Page 318 of [2001] 4 All SA 315 (A)
[9]
Shortly thereafter the view that had been adopted by the directorate of the ASA was reiterated in a letter
written by its attorneys in which the following was recorded:
"We submit that the issue here of the infringement of section 9(1) of the code and the trademark infringement are
one and the same as the issue substantively is whether Nestlé have copied your client's figures. Accordingly, it is
our client's submission that the ASA should not hear the matter and the matter should be decided by the Registrar
of Trademarks. We submit further that the reason that you are approaching the ASA for a ruling is as a form of
interim relief when you should approach the High Court for interim relief.
It is thus the decision of ASA that they will not hear this matter, but should you wish to take our client on review,
our client will abide the decision of the court in that regard."
[10] The stance that was adopted by the ASA as reflected in these letters prompted Mars to apply to the
Witwatersrand Local Division on notice of motion for an order having the effect of compelling the ASA to
reconsider and rule upon its complaint. The matter came before Schabort J who upheld the claim (the judgment
is reported as Mars Inc
View Parallel Citation
v Advertising Standards Authority of South Africa and another 2000 (4) SA 511 (W)) but granted Nestlé leave to
appeal to this Court.
[11] Before turning to the merits of the appeal there is a preliminary matter. It was submitted on behalf of Nestlé in
the court below and in this Court that the evidence does not establish that the application was authorised by
Mars. It is a little surprising that the point was taken at all, let alone that it was pursued on appeal, because it
is abundantly clear that at the time the application was heard Mars, even if it had not authorised them at the
outset, had at least ratified the commencement of the proceedings as it was entitled to do (Smith v
Kwanonqubela Town Council 1 1999 (4) SA 947 (A) at 953B). It was submitted on behalf of Nestlé that the
resolution relied upon by Mars (which does not expressly state when it was adopted) cannot be construed as
ratifying events that had already occurred. If that is so it only lends support to the inference that the resolution
must have been adopted before the proceedings were commenced. But if it was not adopted before the
proceedings were commenced then it is capable of no meaning but that Mars intended to ratify what had
already been done. Whichever way the resolution is construed it is clear that the proceedings were authorised
by Mars and there is no merit in the point.
[12] It was not disputed that by subscribing to the terms of the Code the ASA and its members became
contractually bound inter se to adhere to the respective obligations imposed upon them. (cf Marlin v Durban Turf
Club and others 1942 AD 112 at 126128). That meant that the ASA was obliged to consider and to rule upon
complaints that were made to it in accordance with the procedure contained in the Code. It was also not
disputed that in the event of the ASA failing to comply with that obligation it would be competent for a court to
order it to do so.
[13] The ASA did not oppose the application nor did it file any affidavits in explanation of its decision. We have
nothing but its letter as amplified by the letter from its attorney to determine the nature of the decision that it
reached and the grounds upon which it did so.
Page 319 of [2001] 4 All SA 315 (A)
[14] It appears from those letters that the decision that is now in issue was made by the directorate of the ASA
rather than the Advertising Properties Committee (to which the complaint had been directed) but I do not think
it is material for present purposes which of those two bodies was properly required to consider the complaint.
[15] Nestlé's principal submission was that the circumstances that arose in the present case were analogous to
those that would give rise to a defence of lis alibi pendens in a court of law. It was submitted that the ASA was
not obliged to consider the complaint because the matter that formed the subject of the complaint was
awaiting adjudication before what was referred to as another forum of competent jurisdiction (ie the Registrar
of Trade Marks). In my view the analogy is misplaced.
[16] The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a
common underlying principle which is that there should be finality in litigation. Once a suit has been
View Parallel Citation
commenced before a tribunal that is competent to adjudicate upon it the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will
not be permitted to be revived once it has been brought to its proper conclusion (res judicata). The same suit,
between the same parties, should be brought only once and finally.
[17] There is room for the application of that principle only where the same dispute, between the same parties, is
sought to be placed before the same tribunal (or two tribunals with equal competence to end the dispute
authoritatively). In the absence of any of those elements there is no potential for a duplication of actions. In
my view none of those elements is present in this case. Indeed, it is difficult to see how they can exist where
the matters in issue have been placed before two quite different tribunals (as in this case), the one operating