CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 132/22
In the matter between:
BLISS BRANDS (PTY) LIMITED Applicant
and
ADVERTISING REGULATORY BOARD NPC First Respondent
COLGATE-PALMOLIVE (PTY) LIMITED Second Respondent
COLGATE-PALMOLIVE COMPANY Third Respondent
Neutral citation: Bliss Brands (Pty) Ltd v Advertising Regulatory Board NPC and
Others [2023] ZACC 19
Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Theron J
Judgment: Madlanga J (unanimous)
2
Heard on: 2 March 2023
Decided on: 26 June 2023
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Johannesburg):
Leave to appeal is refused with costs, including the costs of two counsel .
JUDGMENT
MADLANGA J ( Zondo CJ, Kollapen J , Majiedt J, M akgoka AJ, Mathopo J,
Potterill AJ, Rogers J and Theron J concurring):
Introduction
[1] Bliss Brands (Pty) Ltd (Bliss Brands), the applicant, is a company that sells
cleaning and hygiene products . At issue in this matter are questions of a constitutional
and administrative law nature. They have a reach beyond the role players in this matter.
Chief amongst the issues is whether a non-profit company, the Advertising Regulatory
Board NPC (ARB), the first respondent , which is a non-statutory body, has authority to
take regulatory action against an entity that is not its member. This question arises
because Bliss Brands is not a member of the ARB. Despite the magnitude of the
questions and the allure of grappling with them, the decision we reach highlights the
fact that at times the imperative of judicial avoidance does and must carry the day .
Indeed, in Albutt Ngcobo CJ tells us that—
MADLANGA J
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“[s]ound judicial policy requires us to decide only that which is demanded by the facts
of th e case and is necessary for its proper disposal. This is particularly so in
constitutional matters, where jurisprudence must be allowed to develop incrementally.
At times it may be tempting, as in the present case, to go beyond that which is strictly
necessary for a proper disposition of the case. Judicial wisdom requires us to resist the
temptation and to wait for an occasion when both the facts and the proper disposition
of the case require an issue to be confronted. This is not the occasion to do so. There
may well be cases, and they are very rare, when it may be necessary to decide [for
example] an ancillary issue in the public interest.”1
[2] What dictates the adoption of a minimalist approach in this matter will soon
become apparent.
Background
[3] The ARB is an independent , voluntary entity that regulates advertising among
its members. It is funded by some of its members and by certain entities that are not
members. Its core function is to ensure that advertising by its members accords with its
Code of Advertising Practice (Code) . The Code states its main objects to be : to protect
consumers; to ensure that advertisers maintain standards of professionalism; and to
ensure that advertising, which is a service to the public, is informative, factual, hones t
and decent. The Code is based on the In ternational Code of Advertising Practice.
Internationally the latter code is the basis of domestic self -regulation in the advertising
industry. Industry players in South Africa, some of whom are members of the ARB and
some of whom are not, comprise the print, digital and broadcast media.
[4] The relationship between the ARB and its members is contractual. 2 It is in terms
of that contractual relati onship that members are bound by the Code. In the main, the
1 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC) at para 82, referred to with approval in Eskom Holdings SOC Ltd v Vaal River Development
Association (Pty) Ltd [2022] ZACC 44; 2023 (5) BCLR 527 (CC) at para 252.
2 There is statutory dimension – which will be elaborated upon later – provided for in section 55 of the Electronic
Communications Act 36 of 2005 (ECA).
MADLANGA J
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Code prescribes that members must not prepare or accept any advertising that conflicts
with it and must withdraw any advertising that is subsequently deemed to be
unacceptable by certain function aries of the ARB.
[5] Although the ARB’s Memorandum of Incorporation (MOI) says that – absent
submission to jurisdiction – the ARB has no jurisdiction over non -members, the ARB
may issue rulings that impact negatively on the rights or interests of non-members. This
is in instances where – by means of a ruling – the ARB directs its members not to accept
an advertisement if it is yet to be published or to withdraw it if it has been published.
A ruling of this nature is called an ad -alert.3 The effect of the d irection will be that a
member will have to withdraw a non -member’s advertisement that has been published
or refuse to accept a non -member’s advertisement that is yet to be published. 4
[6] Colgate-Palmolive (Pty) Ltd, the second respondent, and Colgate -Palmolive
Company (Colgate), the third respondent, are competitors of Bliss Brands. Colgate
lodged a complaint with the ARB against Bliss Brands. It alleged that the packaging of
Securex, a soap manufactured by Bliss Brands, breached the Code in that it imitated the
packaging architecture of Protex, a soap manufactured by Colgate, thereby improperly
exploiting the advertising goodwill of Protex.
[7] Bliss Brands, a non -member of the ARB, did not object to the ARB’s exercise
of jurisdiction over it. Instead, it participated in the ARB proceedings, engaging with
3 An ad-alert is an enforcement notice by the ARB to its members. The ARB’s MOI and the Code provide for
rulings and orders to be made by the ARB against non -members. If a non -member refuses to comply with a
ruling, members of the ARB (including members’ members) are obliged not to accept the non -compliant
advertisement or to withdraw it, if it has already been accepted, upon the issuing of a notice (i.e. an ad -alert) to
that effect from the ARB.
4 Clause 3.3 of the ARB’s MOI provides:
“The [ARB] has no jurisdiction over any person or entity who is not a member and may not, in
the absence of a submission to its jurisdiction, require non -members to participate in its
processes, issue any instruction, order or ruling against the non -member or sanction it.
However, the [ARB] may consider and issue a ruling to its members (which is not binding on
non-members) regarding any advertisement regardless of by whom it is pu blished to determine,
on behalf of its members, whether its members should accept any advertisement before it is
published or should withdraw any advertisement if it has been published.”
MADLANGA J
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the merits of the complaint. The first letter of response to the complaint written by
Bliss Brands’ attorneys which engaged with the complaint in detail5 is notable for the
fact that, despite its length, it contained nary a word about the ARB’s lack of
jurisdiction. I cannot but emphasise the fact that the engagement with the merits of the
complaint totalled 11 pages and just under 70 paragraphs. This, despite a request by
the ARB that Bliss Brands indicate “if [it did] not consider itself to be bound by the
[jurisdiction of the] ARB”.
[8] The Directorate, which is the first-instance level in the ARB’s hierarchy of
deciding complaints, found for Bliss Brands. Colgate went on appeal to the Advertising
Appeals Committee (AAC) within the hierarchy. It succee ded. Bliss Brands appealed
to the ARB’s Final Appeal Committee (FAC). The FAC ruled that Bliss Brands should
stop its distribution of the Securex packaging.
[9] At none of the three levels of the ARB’ s decision -making, did Bliss Brands
object to the ARB’s exercise of jurisdiction over it.
[10] After its appeal was dismissed by the FAC, Bliss Brands brought a review
application in the Gauteng Division of the High Court , Johannesburg (High Court) in
which it attacked the FAC’s decision on review grounds founded on the Promotion of
Administrative Justice Act6 (PAJA) and the principle of legality. Crucially, part of the
relief it sought was remittal to the ARB’s FAC in the event of the prayer for a substituted
decision being unsuccessful , something consonant with acceptance of the ARB’s
jurisdiction.
[11] It was only after it was prompted by a directive issued by Fisher J in the
High Court that Bliss Brands added wide-ranging constitutional issues to the review
5 There are other letters from Bliss Brands attorneys, but the first to engage with the merits of the complaint in
detail was this one.
6 3 of 2000.
MADLANGA J
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application thereby bringing about a significant change to its nature. Pursuant to the
directive, Bliss Brands sought an order declaring the ARB’s MOI unconstitutional .
Alternatively, it asked the Court to declare tha t: clause 3.3 of the MOI is
unconstitutional;7 and the ARB has no power to exercise jurisdiction over non-members
and their advertising. The High Court made an order along the lines of the alternative
relief. As a consequence, it set aside the FAC’s decision.
[12] On appeal, the Supreme Court of Appeal reversed the High Court’s decision. It
first criticised the High Court for raising issues that had not been raised by
Bliss Brands.8 It held that Bliss Brands had submitted to the ARB’s jurisdiction and
that – on this basis alone – the appeal had to succeed. At the urging of counsel for the
ARB, the Supreme Court of Appeal did not end there. Counsel urged that Court to deal
with the issues which had been raised by Bliss Brands at the instance of, and had then
been decided by, the High Court (constitutional issues) . Counsel submitted that, if left
undisturbed, what the High Court held on the constitutional issues would result in legal
uncertainty and that this would impede the proper functioning of the AR B. The
Supreme Court of Appeal obliged and dealt with the constitutional issues. On these as
well it held against Bliss Brands.
Before this Court
[13] Bliss Brands raises the following grounds of appeal:
7 See clause 3.3 of the ARB’s MOI above n 4.
8 In this regard the Supreme Court of Appeal relied on its decision in Fischer v Ramahlele [2014] ZASCA 88;
2014 SA 614 (SCA); [2014] 3 All SA 395 (SCA) at para 13 and this Court’s judgments in Public Protector v
South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) at para 234 and
Minister of Police v AmaBhungane Centre for Investigative Journali sm NPC [2021] ZACC 3; 2021 (3) SA 246
(CC); 2021 (4) BCLR 349 (CC) at para 58. In Fischer the Supreme Court of Appeal held:
“[I]t is for the parties, either in the pleadings or affidavits (which serve the function of both
pleadings and evidence ), to set out and define the nature of their dispute , and it is for the court
to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining
to the basic human rights guaranteed by our Constitution, for ‘it is impermissible for a pa rty to
rely on a constitutional complaint that was not plead ed’. There are cases where the parties may
expand those issues by the way in whic h they conduct the proceedings. There may also b e
instances where the court may mero motu raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case. That is subject to the proviso that no
prejudice will be caused to any party by its being decided. Beyond that it is for the parties to
identify the dispute and for the court to determine that dispute and that dispute alone. ”
MADLANGA J
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(a) The Supreme Court of Appeal should not have made an is sue of the fact
that the constitutional issues were raised by the High Court because this
was not a ground of appeal. In any event, once Bliss Brands amended its
notice of motion, the constitutional issues were properly before the High
Court.
(b) Bliss Brands’ consent or submission to the jurisdiction of the ARB was
not a ground of appeal before the S upreme Court of Appeal. Thus, that
Court ought not to have decided that question . Nevertheless, argues
Bliss Brands, the participation of a non-member in ARB processes cannot
amount to “true” consent to the jurisdiction of the ARB because:
regardless of whether Bliss Brands participated in or objected to the
ARB’s jurisdiction, the ARB would have determined the complaint and
issued a ruling or decision which it s members would enforce , any
objection to jurisdiction by Bliss Brands being of no consequence ; and
any participation was effectively coerced by the threat of an ad -alert.
(c) What t he Supreme Court of Appeal held in respect of section 55 of the
ECA9 is correc t but of no relevance to Bliss Brands.10 That is so because
9 Section 55 of the ECA provides:
“(1) All broadcasting service licensees must adhere to the Code of Advertising Practice (in
this section referred to as the Code) as from time to time determined and administered
by the Advertising Standards Authority of South Africa and to any advertising
regulations prescribed by the Authority in respect of scheduling of adverts,
infomercials and programme sponsorships.
(2) The Complaints and Compliance Committee mu st adjudicate complaints concerning
alleged breaches of the Code by broadcasting service licensees who are not members
of the Advertising Standards Authority of South Africa, in accordance with section
17C of the [Independent Communications Authority of So uth Africa Act 13 of 2000
(ICASA Act)], as well as complaints concerning alleged breaches of the advertising
regulations.
(3) Where a broadcasting licensee, irrespective of whether or not he or she is a member of
the said Advertising Standards Authority o f South Africa, is found to have breached
the Code or advertising regulations, such broadcasting licensee must be dealt with in
accordance with applicable provisions of sections 17A to 17H of the ICASA Act. ”
Section 1 of the ECA defines the “Advertising Standards Authority of South Africa” (ASA) as “the entity
which regulates the content of advertising, or any entity that replaces it but has the same functions”. It
is common cause that the ARB replaced the ASA.
10 The Supreme Court of Appeal held that sec tion 55 of the ECA obliges all broadcast service licensees – whether
ARB members or not – to comply with the Code contemplated in that section which, because the ARB replaced
the ASA, is the ARB’s Code. The Supreme Court of Appeal further held that the se ction empowers either of the
following bodies to adjudicate complaints of alleged breaches of the Code: the ARB (in respect of its members
MADLANGA J
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Bliss Brands is not a broadcast licensee under the ECA, which means
section 55 of the ECA is not applicable to it .
(d) The Supreme Court of Appeal’s previous decision in Herbex11 is no
authority for th e legality of the ARB’s ex ercise of jurisdiction over
non-members. In Herbex, the Supreme Court of Appeal made a
settlement agreement an order of court.12 And, in its reasoning, it
endorsed the content of the settlement agreement. In the present
application, the Supreme Court of Appeal affirmed Herbex.13
Bliss Brands argues that because the settlement agreement in Herbex
refers only to the ASA, and not th e ARB, Herbex cannot afford the ARB
the authority it purports to exercise over it.
(e) What the Supreme Court of Appeal held in relation to ARB members’
rights to freedom of expression and association was unrelated to the issue
before this Court, i.e. whether the ARB may i mpose its jurisdiction on a
non-member. For clarity with regard to the rights to freedom of
expression and association, t he Supreme Court of Appeal held:
that are broadcast services licensees); or the Complaints and Compliance Committee of the Independent
Communications Authority of South Africa (ICASA) (in respect of non -ARB broadcast services licensees), in
terms of section 17C of the ICASA Act. See Advertising Regulatory Board NPC v Bliss Brands (Pty) Ltd [2022]
ZASCA 51; 2022 (4) SA 57 (SCA) ; [2022] 2 All SA 607 (SCA ) (Supreme Court of Appeal judgment) at para 21.
11 Advertising Standards Authority v Herbex (Pty) Ltd [2017] ZASCA 132; 2017 (6) SA 354 (SCA).
12 Id at para 18. The order (incorporating the settlement agr eement) reads in relevant part:
“1. It is declared that:
1.1 the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction
over any person or entity who is not a member of the ASA and that the ASA may
not, in the absence of a submission to its jurisdiction, require non -members to
participate in its processes, issue any instruction, order or ruling against the
non-member or sanction it;
1.2 the ASA may consider and issue a ruling to its members (which is not binding on
non-members) on any advertisement , regardless of by whom it is published to
determine, on behalf of its members, whether its members should accept any
advertisement before it is published or should withdraw any advertisement if it
has been published.
2. The ASA is directed to include in it s standard letter of complaint the contents of
paragraph 1 and that a non -member is not obliged to participate in any ASA process,
but that should it not participate, the ASA may still consider the complaint, for the
purposes set out in paragraph 1.2.”
13 Supreme Court of Appeal judgment above n 10 at paras 25-34.
MADLANGA J
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“As regards the powers of the ARB. . . the ARB is entitled to consider,
on behalf of it s members, complaints in respect of advertisements
published by non-members of the ARB, so that its members may make
an election whether or not they wish to publish that advertisement.
This is an incident of their constitutional rights to freedom of
expression and association. The high court’s order prevents the
members of the ARB from using their chosen method of deciding
which advertisement they wish to publish and which advertisers they
wish to associate with. This constitutes an unjustifiable limitation on
the rights of members to freedom of expression and association.”14
(f) The ARB’s processes offend section 34 of the Constitution by ousting the
jurisdiction of courts in respect of the merits of complaints on matters
involving fundamental rights (chiefly, freedom of expression). Further,
the ARB’s adjudicative processes are not procedurally fair , this too being
a breach of section 34 of the Constitution .
[14] The ARB and Colgate oppose the application, submitting that Bliss Brands’ case
cannot meet t his Court’s jurisdictional or leave to appeal thresholds, in that no
constitutional issues of import have been raised nor are there any points of law that are
arguable. In the main, the respondents submit that the relief sought by Bliss Brands
effectively dismantles the legitimate system of self -regulation of advertising
undergirded by the ARB’s members’ rights to freedom of association and expression
and exercised via the Code and the ARB’s MOI. They contend that, as the S upreme
Court of Appeal held, the members of the ARB “have organised around the shared goal
of promoting ethical standards in advertising, as reflected in the Code”, adding that
“[t]hey have agreed to collectively delegate decision -making to the ARB’s expert
adjudicative bodies that deter mine complaints on their behalf” . According to the
respondents, the ARB is the instrumentality of the will of its members ;
the ARB – through its decision -making power – is the conduit through which its
members collectively enjoy and exercise their rights to freedom of association and
14 Supreme Court of Appeal judgment above n 10 at para 24.
MADLANGA J
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expression. This, notwithstanding the fact that the ARB’s decisions may have an effect
on non-members since the decisions may require members to act in a manner that has
an adverse impact on non-members.
Analysis
[15] Bliss Brands’ counsel conceded that if this Court holds that Bliss Brands did
consent to the ARB’s jurisdiction, that will be dispositive of this matter. That means it
will not be necessary to determine any of the other issues Bliss Brands has raised. The
concession is well-made. Viewed closely, the springboard for all the grounds of appeal
is the idea that the ARB was not entitled to exercise its jurisdiction over Bliss Brands.
Indeed, the Supreme Court of Appeal held – correctly so – that the appeal could b e
disposed of solely on the basis that Bliss Brands consented to the jurisdiction of the
ARB.15 Also, and more directly, if Bliss Brands submitted to the ARB’s jurisdiction,
the grounds of appeal become academic. Counsel did not argue that there are any
interests of justice considerations that make it necessary for us to consider these grounds
of appeal. Nor can I think of any. That being the case, I must next consider whether
Bliss Brands did submit to the ARB’s jurisdiction. I must do so because, if t here was
no submission to jurisdiction, it may well become necessary to d eal with the grounds of
appeal.
[16] In Purser Mpati AJA held:
“It is in any event clear. . . that, by defending the action, the appellant wished to avoid
execution against assets which he still had in the United Kingdom. He wanted to
protect such assets and, judging from his plea, thought that he had a good defence to
meet the appellant’s claim. He participated fully in the proceedings and, having failed
in his defence, cannot now be heard to say that he participated only so as to protect his
assets in the United Kingdom. A defendant who raises no objection to a court ’s
jurisdiction and asks it to dismiss on its merits a claim brought against him is invoking
the jurisdiction of that court just as surely as the plaintiff invoked it when he instituted
the claim. Such a defendant does so in order to defeat the plaintiff ’s claim in a way
15 Supreme Court of Appeal judgment above n 10 at para 13.
MADLANGA J
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which will be decisive and will render him immune from any subsequent attempt to
assert the claim. Should he succeed in his defence, the doctrine of res judicata will
afford him that protection. Should his defence fail, he cannot repudiate the jurisdiction
of the very court which he asked to uphold it. In my view, the facts point
overwhelmingly to the appellant having submitted to the jurisdiction of the
English Court.”16
[17] Bliss Brands’ argument suggests that this principle on submission to jurisdiction
does not apply to the situation in which Bliss Brands found itself. It argues that the idea
of submission makes practical sense if a refusal to submit has the benefit that there will
be no adverse consequences for the party concerned; a refusal to s ubmit to jurisdiction
must have a “result”. Bliss Brands illustrates this by making the point that if a litigant
does not submit to the jurisdiction of , for example, a court , the court cannot exercise
jurisdiction over that litigant and nothing adverse wi ll befall that litigant . That is the
“result”. Bliss Brands contrasts this with ARB proceedings and says even if a
non-member does not consent to jurisdiction, the ARB may still entertain the
proceedings and issue an ad -alert. The effect of an ad -alert is 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, a refusal to submit to the jurisdiction of the ARB does not afford the non-member
a beneficial result. If I were to paraphrase what comes out o f the argument,
Bliss Brands’ point is that, with ARB proceedings, circumstances are such that
non-members are coerced to participate.
[18] At first blush, the argument is attractive. However, it does not hold up to
scrutiny. In the first place, in the case of a complaint to t he ARB, non-submission by a
non-member 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 adve rtise in media belonging to
16 Purser v Sales [2000] ZASCA 46; 2001 (3) SA 445 (SCA) ; [2001] 1 All SA 25 (A) at para 22.
MADLANGA J
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non-members and (in a case such as the present) 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.
[19] In any event, I think that it is too much of a leap for Bliss Brands to suggest that
all non -members that participate in ARB proceedings without demur do so under
coercion. Surely, one cannot discoun t the possibility that some non -members
participate in the pro ceedings willingly, thus submitting to the ARB’s jurisdiction. It
seems to me that 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? Based on the
facts, the next question is whether the legal conclusion that there was submission can
be drawn.
[20] With the above in mind, did Bliss Brands submit to the ARB’s juris diction? The
Supreme Court of Appeal held that it did. It held thus based on the following facts. 17
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”. 18 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 Sec urex
was in contravention of the Code and directed Bliss Brands to withdraw or amend its
product packaging, Bliss Brands be afforded six months from the date of the ruling in
which to do so. This was an unambiguous intimation by Bliss Brand s that it was
submitting itself to the ARB’s jurisdiction. It participated at all stages of the ARB
proceedings without a whimper of protest. It was happy with the Directorate’s finding
(the first instance finding) which was in its favour. When the AAC upheld Colgate ’s
appeal, Bliss Brands appealed on the merits to the FAC . In the review application,
17 On these f acts see Supreme Court of Appeal judgment above n 10 at paras 11-2.
18 Id at para 11, quoting the Herbex order.
MADLANGA J
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Bliss Brands, inter alia, sought remittal to the FAC in the event of the prayer for a
substituted decision being unsuccessful.
[21] Ordinarily, this Court does not grapple w ith contested factual issues. It goes by
factual findings made by the courts below . Jafta J puts it thus in Makate:
“[T]his being the highest Court in the Republic which is charged with upholding the
Constitution, and deciding points of law of general public importance, this Court must
not be saddled with the responsibility of resolving factual disputes where disputes of
that kind have been determined by lower courts. Deciding factual disputes is ordinarily
not the role of apex courts. Ordinarily, an apex court declares the law that must be
followed and applied by the other courts. Factual disputes must be determined by the
lower courts and when cases come to this Court on appeal, they are adjudicated on the
facts as found by the lower courts.”19
There is an exception to this rule. Where the dictates of justice so require, an appellate
court may interfere with the factual findings of a lower court. 20
[22] I can conceive of no basis on which the ordinary rule should not apply to the
factual findings made against Bliss Brands by the Supreme Court of Appeal.
Therefore, the application for leave to appeal must fail. To conclude, b ecause
Bliss Brands consented to the jurisdiction of the ARB, it is not in the interests of justice
to entertain any other issue in this matter.
Order
[23] The following order is made:
Leave to appeal is refused with costs, including the costs of two counsel.
19 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 39.
20 See Bernert v Absa Bank Ltd [2010] ZACC 28 ; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC) at para 106;
and Makate id at para 40.
For the Applicant:
For the First Respondent:
For the Second and Third Respondent:
C Loxton SC and F Southwood SC
instructed by Eversheds Sutherland
(SA) Incorporated
S Budlender SC, N Ferreira,
K Harding-Moerdyk and K Mvubu
instructed by Willem de Klerk
Attorneys
G Marcus SC and C McConnachie
instructed by Kisch Africa Incorporated