REPUBLIC OF SOUTH AFRICA

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

CASE NO: 095598/2024





In the matter between:
COLGATE -PALMOLIVE (PTY) LTD FIRST APPLICANT
COLGATE -PALMOLIVE COMPANY SECOND APPLICANT
and
BLISS BRANDS (PTY) LTD FIRST RESPONDENT
ADVERTISING REGULATORY BOARD NPC SECOND RESPONDENT

LEAVE TO APPEAL JUDGMENT

Manoim J:


(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO

……… ........... …27/01/2025……
SIGNATURE DATE

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Introduction
[1] In these reasons I deal with three applications which were heard together and
are interrelated . For convenience I will refer to the parties as Colgate and Bliss ,
and the second respondent , the Advertising Regulatory Board NP C, as the
ARB.1
[2] On 13 December 2024 I delivered a judgment in relation to an application
brought by Colgate alleging that Bliss was in contempt of court or at the least
in breach of an order I had given earlier that year on 21 February 2024 . (I will
refer to this earlier order from now on as the Manoim J order and my December
13 order as the ‘December order ’ or ‘December decision ’, depending on the
context .)
[3] In my December decision I largely found in favour of Colgate and gave the
following order (material parts only)
“The First Respondent is directed to comply with paragraph 3 of
the Manoim J order, forthwith, and no later than 15 working days
from the date of this order, by withdrawing the Offending
Packaging and the Latest Offending Packaging, depicted in
Annexures B and C annexed to the Notice of motion, from every
medium in which they appear, over which the second respondent

1 Colgate is shorthand used throughout this litigation for the two firms in the Colgate structure, Colgate
Palmolive (Pty) Ltd and Colgate Palmolive Company. Bliss is Bliss is Bliss Brands (Pty) Ltd.
3

has jurisdiction, by virtue of them being member. ” (emphasis
provided)
[4] The present three applications followed i n consequence of that decision . First,
Bliss applied for leave to appeal. Secon d, Colgate applied for leave to cross -
appeal on a narrow point – the underlined portion of the order set out above .
Third, Colgate also applied for an order in terms of section 18(3) of the Superior
Courts Act not to suspend the December order pending the appeal . That r elief
was framed in these terms:
“The operation and execution of the order of Manoim J dated 13
December 2024 is not suspended by any application for leave to
appeal or any appeal and will continue to operate and be
executed in full until the final determination of all present and
future leave to appeal applications and appeals .”
[5] I deal with each of these applications in turn.
Bliss leave to appeal
[6] In the December decision , one of the key issues I had to decide , was whether
a new variation of Bliss’ Securex packaging , contravened the Manoim J order.
(Bliss had never sought to appeal that order , so it still stands. )
[7] Bliss had argued that it had complied with the Manoim J order as it had varied
its packaging in October 2024 . The debate before me in December was what
to compare the October variation with. Was it to be compared with Colgate ’s
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Protex packaging , which was the basis of Colgate’s original complaint to the
ARB or was it to be compared with Bliss’ Securex that was the subject of the
Manoim J order in April.
[8] Bliss argued for the former, Colgate the latter. I decided in favour of Colgate on
this point. But this was not the first time this issue had arisen.
[9] The same issue had previously come before Vally J , again as an urgent
application , in October 2024. Although the packaging before Vally J was an
earlier variant of the packaging that had I had found in February 2024 to be an
infringement of the ARB code, ( the infringing packaging ) he decided the
principle in the same manner I did in December. i.e. comparing the varian t with
the infringing packaging , not the prior Colgate Protex packaging. Bliss then
applied for leave to appeal which Vally J granted to the SC A. There was a
debate over whether he intended to grant a full appeal or to restrict the issue
on appeal . Specifically to whether for the purpose of contempt , wilfulness had
been shown . I quote the relevant passage below:
[10] “Before me, is an application for leave to appeal. Having heard counsel and
read the papers before me in this matter, I have come to the conclusion that
there is a reasonable possibility that another court would come to a different
conclusion, particularly in regard to the question of whether the applicant had
successfully proven the presumption of wilfulness and ma la fides in its failure
to comply with the Manoim J order and thus reverse paragraph 3 of the order
issued. ”
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[11] However, Vally J did not place any restriction on the leave to appeal in his order.
Nor can the passage above be read to say any more than he was emphasising
the issue of wilfulness , rather than restricting the ambit of appeal to it. Mr
Marcus for Colgate correctly conceded that the SCA was thus at large on
appeal to consider the correct comparative test.
[12] Given that this is the case I believe since the same issue came u p in the Vally
J matter and is already going to be before the SCA it is appropriate that I grant
leave to appeal as well. This will also avoid a further protracted dispute between
the parties as to whether my December order is distinguishable from that of
Vally J in October. This is , as I go on to discuss , is a saga of near five years
duration. I will therefore grant leave to appeal to the SCA in respect of the Bliss
application.
Cross Appeal
[13] The cross appeal is confined to a narrow but not unimportant point. My
December order limited the relief to members of the ARB. Colgate contends
that this is too narrow an order and that having submitted to the jurisdiction of
the ARB Bliss cannot benefit from this limitation which was in any event not
contemplated in the Manoim J order .
Bliss has not opposed the granting of leave for the cross appeal and for this
reason I do not need to consider this issue further save to remark that this is an
important issue to be decided not merely for these parties but for the ARB as
well for future guidance. Hence, I grant leave to appeal to the SCA in respect
of this cross -appeal as well .
6

Section 18(3) application
[14] Colgate has brought the section 18(3) application. The provisions of that section
are well known, and I do not need to summarise them. The parties are agreed
that the section requires the applicant , in this case Colgate , to establish the
following:
a. Exceptional circumstances exist
b. Irreparable harm to the applicant; (i.e. Colgate)
c. No irreparable harm to the respondent (i.e. Bliss)
[15] In addition, in terms of case law the following interpretation has been applied.
Firstly, prospects of success are relevant. 2 Second exceptional circumstance s
are looked at strictly. Thirdly the test must not be applied mechanically but
holistically.
[16] In this regard the approach taken by Ponnan JA in the Tyte case is instructive:3
“The overarching enquiry is whether or not exceptional
circumstances subsist. To that end, the presence or absence of
irreparable harm, as the case may be, may well be subsumed
under the overarching exceptional circumstances enquiry. As long
as a court is a live to the duty cast upon it by the legislature to
enquire into, and satisfy itself in respect of, exceptional

2 University of the Free State v Afriforum and another 2018 (3) SA 428 (SCA) at paras 14 - 15. Ntlemeza
v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) at para 37, citing MV Ais Mamas
Seatrans Maritime v Owners, MV Ais Mamas, & another 2002 (6) SA 150 (C) at 156H -157C.
3 Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175 (SCA)
at paragraphs 14 -15.
7

circumstances, as also irreparable harm, it does not have to do
so in a formulaic or hierarchical fashion.
[17] Although it has been postulated that the second and third are distinct and
discrete enquiries, they are perhaps more accurately to be understood as being
two sides of the same coin. The same facts and circumstances, which by that
stage ought largely to be either common cause or undisputed, will inform both
enquiries. The logical corollary of an applicant suffering irreparable harm will
invariably - but not always - be that the other party has not. The enquiry into
each can thus hardly be mutually exclu sive, particularly because, as far as the
third is concerned, unlike the second, the onus cast upon an applicant would
be to prove a negative, in accordance with the usual civil standard. This
suggests that, as with the exceptional circumstances enquiry, a court
considering both the second and third must have regard to all of the facts and
circumstances in any particular case. Insofar as the third goes, although s 18(3)
casts the onus (which does not shift) upon an applicant, a respondent may well
attract s omething in the nature of an evidentiary burden. This would be
especially so where the facts relevant to the third are peculiarly within the
knowledge of the respondent. In that event it will perhaps fall to the respondent
to raise those facts in an answer ing affidavit to the s 18 application, which may
invite a response from the applicant by way of a replying affidavit. ”
[18] I have quoted from this decision at some length as not only is it the most recent
decision on this section that I have been referred to , but it deals pragmatically
with the approach to a section that might otherwise prove daunting to interpret .
8

The facts
[19] Colgate makes much for how long this dispute has lasted. It made its complaint
first with the AR B in December 2019 . For a period, it went through the internal
processes of the AR B until the latter ’s Final A ppeal Committee (“the FAC”), in
August 2020, decided the matter finally , with its Chairperson , Ngoepe JP , as
the presiding member, exercising a casting vote . The matter then went to the
High Court. First Bliss sought to interdict the implementation of the ARB ’s
award, but this failed before Yacoob J. Bliss then returned to the High Court
bringing a review which was heard by Fisher J.
[20] Fisher J mero motu raised a constitutional issue around the ARB’s jurisdiction.
She found in favour of Bliss, but the matter then went to the SCA which reversed
her decision . Bliss then appealed that decision to the Constitu tional Court. That
court unanimously decided to refuse leave to appeal. At issue before Fisher J,
the SCA and the Constitutional Court , was whether the ARB could exercise
jurisdiction against a non -member even where it had consented to its
jurisdiction. The Constitutional Court found that w here a non -member submits
to the ARB’s jurisdiction , the ARB can submit directions which are binding on
non-members.
[21] It then came to me on review of the FAC’s decision, and I found in favour of
Colgate , effectively upholding the relief granted by the FAC . My decision , which
was handed down on 21 February 2024, was never taken on appeal. That
decision , the Manoim J order, required Bliss to remove the infringing packaging
within three months of the date of the order. What happened next was that Bliss
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launched new packaging in the market in May 2024 , in purported compliance
with the Manoim J order. Colgate took the view that the new May packaging
was in contravention of the Manoim J order , as it too closely resembled the
infring ing packaging.4 Colgate took the matter back to the FAC. Ngoepe JP
ruled that the May packaging was not compliant. Colgate then went to court to
get an urgent interdict to place Bliss in contempt.
[22] This is where the Vally J order arose. Vally J found Bliss in contempt. In deciding
the matter Vally J held that the May packaging was:
“Wilfully designed so as no t to be materially distinguishable from
what existed previously. ”
[23] Bliss then applied for leave to appeal , which Vally J granted . In the meantime,
Bliss introduced another version of the packaging, the ‘October packaging .’
Colgate considered that this too was not compliant with the Manoim J order and
brought another urgent application which I heard in December. That decision ,
which found that the October packaging was in breach of the Manoim J order ,
is now the subject of this leave to appeal , the cross -appeal, and the section
18(3) application .
[24] Colgate argues that save for the Fisher J order , Bliss has lost every case in this
long litany of litigation. More pertinent given the issue on appeal to the SCA is
that three judges, Ngoepe JP in his AR B capacity, Vally J and I have all found

4 I use the term offending packaging to refer to the Bliss Securex packaging of 2018 which had been
found by the ARB; s FAC to contravene its Code in August 2020 and which was the subject matter of
the review before me leading to the Manoim J order.
10

against Bliss on the merits. Fisher J in any event did not decide the matter on
the merits of whether Bliss had contravened the Code. Apart from the factual
issues of the resemblance between the respective packages , the test adopted
in our decisions falls within the mainstream of decisions in this area of law. Put
simply Bliss had an election – it could stay as close as possible to the margin
line, or it could choose to stay well away from it. It chose the former not the
latter. The case law makes it clear that a party faced with such a choice must
stay well clear of the margin line. The decisio ns I have followed then are part of
mainstream jurisprudence on this issue. The conclusion I come to is that
Colgate has strong prospects of success.
[25] I turn now to the test under section 18(3). The history of this matter when looked
at cumulatively shows that Bliss was , despite consistent failure , undeterred
from pursuing its goal , of first keeping the infringing packaging in the market ,
and when that avenue was closed by the Manoim J order, opting to introduce
variants that closely resembled the infringing packaging . Its strategy has paid
off for it thus far.
[26] Colgate was thus compelled to be the initiating litigant to protect the fruits of its
success before the ARB and this court by the two successive contempt
applications. Bliss ’ response has been to appeal both these adverse findings
against it. But in between on this journey of litigation Colgate was also forced
to defend the powers of the ARB all the way to the Constitutional Court.
[27] This lengthy history viewed holistically takes the matter beyond the ordinary to
the exceptional. It must be borne in mind that Bliss has benefited from having
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the infringing packaging and then its further offending variants in the
market place since 2018 . Moreover it has been subject to an adverse finding
that it had transgressed the ARB code since August 2020.
[28] In essence Bliss has benefitted from exploiting its rival’s goodwill undeterred
from adverse findings against it for a considerable period of time which will be
extended further if section 18(3) relief is not granted to Colgate.
[29] I accept that t he term exceptional is subject to different interpretations . As was
held in MV Ais Mamas in a passage subsequently referred to in later decisions
by the SCA:
“Depending on the context in which it is used, the word
exceptional has two shades of meaning: the primary meaning is
unusual or different; the secondary meaning is markedly unusual
or specially different.5 I
[30] The emphasis of Bliss ’ argument before me , was that Colgate had failed to
show exceptional circumstances. It relie d on the dicta in the University of Free
State case where the SCA had stated :
“I think, in evaluating the circumstances relied upon by an
applicant, a court should bear in mind that what is sought is an
extraordinary deviation from the norm, which, in turn, requires the

5 MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C),
paragraph cited in Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) and
Incubeta Holdings (Pty) Ltd and Another v Ellis and Another B 2014 (3) SA 189 (GJ): paragraph 16
12

existence of truly exceptional circumstances to justify the
deviation .”6
[31] Thus , the UFS case posits the secondary shade of meaning contemplated
earlier on in the MV Ais Mamas case. But it is not necessary for me to decide
which shade of meaning to apply in this case . On either test the case is an
exceptional one.
[32] Moreover, the facts of this case are more closely aligned to those in Tyte the
more recent decision where the SCA took a less exacting approach to proof of
exceptionalism and adopt ed its holistic test. In the UFS case the SCA found
that the applicant had failed to make out a case for exceptionalism. There the
court decided on the record that the applicant had not gone further than to
assert a right. But in Tyte the court found that if it did not grant relief to the
applicant then the respondent would get a windf all. The respondent in that
matter was a firm that had won a tender unlawfully. As the incumbent it
appealed against that decision. The losing tenderer had applied for section
18(3) relief . The SCA held that relief under 18(3) was appropriately granted
otherwise the delinquent tenderer would gain a windfall. The facts of this case
are more closely aligned to Tyte than UFS. Similarly in this matter Bliss would
gain a windfall by being able to market the impugned packaging until the appeal
was decided.
[33] Bliss argued that there was no irreparable harm to Colgate because its
packaging , which was the subject of the AR B enquiry , has been withdrawn from

6 University of the Free State v Afriforum and Another [2017] 1 All SA 79 (SCA) ([2016] paragraph 13
13

the market. Colgate has not addressed this point so I can assume this is correct.
Does this change the outcome? Bliss argues that it does and hence Colgate ,
has not made out a case of ongoing harm.
[34] But Colgate and Bliss are rivals competing for market share in the same type
of product. If Bliss is retaining market or even increasing market share on the
basis of packaging that is based on Colgate’s goodwill, then it will have
improved its position in the marketplace illegitimately at Colgate’s expense.
[35] Nor does it appear that Colgate can recover damages for this period. I asked
counsel this question at the hearing and received two answers. Counsel for
Colgate said the only damages would be for an administrative law contravention
and stressed that whilst such a claim was possible it was far from certain in law.
Counsel for Bliss said the matter was much simpler and could be addressed by
a passing off action. But Colgate’s case is not premised on common law
passing off. It is based on a contravention of the ARB code. So, a remedy for
damages is far from certain suggesting that Colgate will indeed suffer
irreparable harm from the continued use of its goodwill until the appeal process
is concluded.
[36] In contrast Bliss has not made out a case for irreparable harm to itself. In
relation to this as was observed in Tyte the respondent in an 18(3) application
whilst not facing an onus at least has an evidential burden. But Bliss has not
made out any case here of how it will be prejudiced in the market going forward.
[37] There was a great deal of debate about whether Bliss was entitled to advertise
through one outlet Makro. Colgate complains that it was doing so. Bliss
14

contends that Makro is not a member of the ARB and so it is entitled to do so.
It wrote to Massmart the get clarity and received an equivocal response. I f
Makro is a member of the ARB and thus subject to its rulings, then it may be
because its holding company is a member of a Marketing Association that in
turn is a member of the ARB. I cannot make a definitive finding on this point.
But it does not prove decisive. The question for the purpose of the breach order
on appeal is Bliss’ ongoing marketing through members of the ARB. It never
gave the obvious undertaking that it would confine its marketing efforts only to
non-members. It is clear then that if the relief is not granted Bliss will be able
to, and presumably will , continue marketing the October packaging in member
outlets .
[38] Nor should there be any sympathy for Bliss. It has had ample to time to change
its packaging. Given that it has tweaked its packaging twice since the Manoim
J order was issued in February 2024 , the logistics and expense of changing
packaging has clearly not proved insuperable. The fact that it has chosen to
make changes so close to the margin line is the reason why it has been found
in contempt by Vally J , and in breach by me, in my December order. This is an
outcome it could have avoided. There is no reason why Colgate must be further
prejudiced as a result of Bliss ’ decision to take the most minimal steps to
comply .
[39] Bliss has not been excluded from the market. Only insofar as its packaging
contravenes the ARB Code. Moreover, the order which I granted in December
contains a carve out permitting it to market even the impugned October
packaging , in non -member outlets .
15

[40] I find that approaching the elements of section 18(3) holistically that Colgate
has made out a case for relief . Bliss is liable for the costs of the applicatio n
although I do not consider that an award of attorney client costs is warranted .
[41] I just wish to clarify one issue. The order remains the one I issued in December.
Even though I have given leave to Colgate to cross appeal on the issue of
whether the withdrawal obligation extends to non -members , it is the December
order I a m reinstating . This means that paragraph 3 of that order remains in its
present form .
ORDER: -
[42] In the result the following order is made:
A. Bliss application for leave to appeal:
1. Leave to appeal to the Supreme Court of Appeal is granted against the
whole of the order granted by Manoim J , dated 13 December 2024 (under
case no. 2024/095598) (“the December order ”).
2. Costs of the application shall be costs in the appeal.
B. Colgate ’s application to cross appeal
1. Leave to appeal to the Supreme Court of Appeal is granted against the
underlined portion in paragraph 3 of the December order , as it appears
in paragraph 3 of that order , as set out below :
“The First Respondent is directed to comply with paragraph 3 of the
Manoim J order, forthwith, and no later than 15 working days from the
date of this order, by withdrawing the Offending Packaging and the
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Latest Offending Packaging, depicted in Annexures B and C annexed to
the Notice of motion, from every medium in which they appear, over
which the second respondent has jurisdiction, by virtue of them being
member.”
2. Costs of the application shall be costs in the appeal.
C. Section 18(3) application
1. The operation and execution of the order of Manoim J dated 13
December 2024 is not suspended by any application for leave to appeal
or any appeal and will continue to operate and be executed in full , until
the final determination of all present and future leave to appeal
applications and appeals.
2. The First Respondent (“Bliss ”) is to pay the costs of this application such
costs to include the costs consequent upon the employment of one senior
and one junior counsel on scale C.

__________ __________
N. MANOIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHNANNESBURG

Date of hearing: 22 January 2025
Date of Reasons : 27 January 2025

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Appearances:
Counsel for the Applicant: G Marcus SC
L. Harilal
C McConnachie
Instructed by : Kisch Africa Inc
Counsel for the First Respondent: C. Loxton SC
I. Learmonth
Instructed by: Eversheds Sutherland SA Inc