The ASA Directorate considered all the relevant documentation submitted by the respective parties.
In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16)  ZASCA 132 the Supreme Court of Appeal found, inter alia, 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.
The ASA will therefore proceed to consider this matter for the guidance of its members.
Clause 1 of Section II of the Code states that "Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest”.
Clause 3.4 of Section II provides that "No advertisements shall contain content of any description that is discriminatory, unless, in the opinion of the ASA, such discrimination is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. Clause 4.17 of Section I, as referenced by Clause 3.4, provides that "Discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly –
4.17.1 imposes burdens, obligations or disadvantage on; or
4.17.2 withholds benefits, opportunities or advantages from,
4.17.3 any person on one or more of the following grounds:
4.17.4 race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or
4.17.5 any other analogous ground; and "discriminate" and "discriminatory" shall have corresponding meanings.
The question before the Directorate is whether the Respondent’s advertising is offensive and /or discriminatory as alleged by the Complainant. The Complainant’s concern emanates from the fact that a black child and her mother are shown in promoting the Respondent to be a desirable employer.
The Directorate recognises that the social concern underlying the complaint is a relevant and important one – that black children in particular, for historical reasons, should be encouraged to get tertiary educations and aspire to careers that hold status and an ability to earn more than a living wage. From the material before the Directorate, it seems the Complainant is of the view that the Respondent only offers employment that is badly paid and does not require valuable education.
However, as pointed out by the Respondent, this is not correct. The Respondent employs pharmacists, lawyers, engineers, auditors, food technologists, butchers, farmers, logistical experts, translators, builders, architects, information technology specialist, banking specialist, accountants, merchandisers, regional -, branch- and department managers, secretaries and numerous support staff. The child’s aspiration to work at Shoprite is therefore not indicative that she will not have a tertiary education and a better future.
The Directorate is also sensitive to the fact that there is nothing shameful or undesirable about working in a more menial job. The child in the commercial is proud of her mother, whose exact role is never made clear. If one works on an assumption that she is indeed a more menial staff member, she is nonetheless still worthy of her child’s respect and admiration.
In addition, the commercial is about a "career day” which happens in schools around the country to inspire children regarding possible career choices. Children are shown dressed as astronauts, nurses, doctors and lawyers. The commercial, if anything, communicates the many possibilities open to all South African children.
There is nothing in the commercial that imposes burdens, obligations or disadvantage on or withholds benefits, opportunities or advantages from black people. In addition, the setting is in class and this resonates with the Respondent’s social responsibility programme in the provision of scholarships at all school levels.
Given the above, the Directorate is of the view that the Respondent’s advertising is not in breach of Clauses 1 and 3.4 of Section II of the Code.
The complaint is accordingly dismissed.