The ASA Directorate considered 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 4.2.1 of Section II reads "Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer”.
The Complainant submitted that the advertising was misleading as the advertised discounted rate of R369 was not honoured by the Respondent. The Respondent advised the Complainant that it is not bound by advertising appearing on third party platforms and that its own terms and conditions exempted it from complying with the advertised price, as prices change from time to time.
The Directorate points out that the ASA is not mandated to enforce an advertised price or deal. What it is mandated to do is rule on misleading advertising.
In Takealot.com / Philips Viva Collection Air Fryer / Thalissa Pillay / 2017-7099F
, the Directorate stated that "The Respondent has submitted that the advertisement in question is controlled by an independent contractor who uploads and updates information about products on offer from time to time. The price was correct at the time that it was provided to the third party, but was not updated in time. The Respondent appears to abdicate any responsibility for this, stating, ‘Takealot has no control over the third-party websites and as a result relies on the contractors to ensure that such websites are updated. . .’. The Respondent also provided no undertaking to immediately remedy the problem.
The Directorate rejects this argument. If the Respondent uses third party advertisers, then the Respondent must ensure that checks and balances are in place to ensure that such advertisers only display correct information. The reality is that it is the Respondent who benefits from the traffic flow to its website, and the Respondent who must take responsibility for the actions of the third party advertiser – in much the same way as an advertiser cannot hide behind the defence that their advertising agency made a mistake”.
Based on the above, the Directorate again rejects the Respondent’s submission that its advertising is not misleading. The consumer is led to believe that advertised products at the discounted rates are available on the Respondents’ online shopping, as third party platforms redirect consumers to the Respondent’s platform.
Given the above, the Directorate is of the view that the Respondent’s advertising is in breach of Clause 4.2.1 of Section II of the Code.
Given the above finding and the Respondent indicating that the advertising is no longer active, the Respondent is advised the advertising material may not be used again in its current format.
The complaint is therefore upheld.