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Home Rulings SHOPRITE / CHARLES NGOBENI / 2018 - 7346F

SHOPRITE / CHARLES NGOBENI / 2018 - 7346F

Mr Ngobeni lodged a consumer complaint against the Respondent’s television commercial flighted on SABC1.

The commercial shows a little back girl in front of a class presenting her future career choice by explaining that "When I grow up. I want to help people save money. I want to work at Shoprite like my mommy. She says Shoprite sells more groceries than any other supermarket. That means they can get their groceries more cheaper than anyone else. That is called bulk buying discount. And because Shoprite pays less, they give everyone in South Africa lower prices”. Behind her, the writing "CAREER DAY” appears on the chalk board.

At the end of her presentation, the commercial show the front row of the class and children dressed in various garments representing various professions appear e.g a pilot, an astronaut, a doctor, a chef, a nurse, a nun and a flight attended. It is worthy to note that various races are represented in the commercial. The following wording appears on screen "Shoprite. Lower prices you can trust Always.”  

COMPLAINT

The Complainant took issue with the advertising on the basis that the Respondent saw it fit, during prime time on a national platform, to create an impression that it is desirable for a black girl to work for the Respondent. He argued that his fear is what   will happen should many black children start dreaming about working for the Respondent, which is a low page job that does not require a tertiary education.. He argued that the Respondent should use a white child and a white mother as he sees this commercial as "racism at its best”.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint the Directorate considered the following clauses of the Code to be relevant:
  • Section II, Clause 1 – Offensive Advertising
  • Section II, Clause 3.4 – Discrimination

RESPONSE

The Respondent submitted that it is not a member of the ASA and do not submit to the jurisdiction of the ASA and no ruling issued by the ASA shall be binding on them.

The Respondent, however, responded on merits and submitted that the Complainant fails to indicate (directly or indirectly) which rule of the ASA Code is allegedly being breached by the Respondent. The Complainant confirms that his complaint is based on assumption that the Respondent does not pay decent salaries to their employees. This claim is not based any facts and is untrue. The Shoprite Group of Companies constitutes the largest retail supermarket business on the African continent and currently employs over 144 000 staff members. 

The Respondent submitted that in order to conduct a retail business, it 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, all which require tertiary education. It offers numerous scholarships for primary, secondary and tertiary education in its corporate social investment programme. It also offers mobile soup kitchen to feed children in the poorest communities. All these employment opportunities are open to all South Africans as it continues to grow its business and expansion into underprivileged communities. All its staff are proud to be members of its organisation.

The Respondent submitted that the complaint is frivolous and vexatious in fact and in law and should not be entertained by the ASA.

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation submitted by the respective parties.

Jurisdiction

In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16) [2017] 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.

Merits

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.


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