Vodacom Yebo4less / Cell C / 12885 (Appeal)
Ruling of the : ASA Appeal Committee
In the matter between:
Vodacom (Pty) Ltd	Complainant(s)/Appellant(s)
Cell C (Pty) Ltd	Respondent

05 Nov 2009

In this matter the respondent lodged a complaint against the appellant in regard to a print advertisement which read “Pay for 1 minute and get up to 99 free minutes with Yebo4less”. The following statement appears underneath this advertisement in small type “Now prepaid customers can get up to 99% discount on calls to all networks”.

The Directorate, in considering the matter, found that Vodacom had to show the discount of 99% applied to more than the insignificant proportion of Yebo4less users. This is the test under the relevant clause 4.5 of Section II of the Code. The Directorate held that Vodacom had not complied with clause 4.5.

That finding was appealed to the Advertising Industry Tribunal (AIT) and the AIT dismissed the appeal, because there was still no information to prove the significant proportion. Before this Appeal Committee, which is in the nature of a re-hearing, the Appellant did file data which showed that it was a significant proportion. This has been accepted in writing by the Respondent in a letter in which the Respondent advises that Vodacom has finally put data before the ASA that enables the ASA to make an informed decision, evaluating whether it believes the data is representative of the correct market and the significant proportion of that market in terms of clause 4.5 of Section II.

The Respondent elected not to defend the appeal and to allow the case to stand on our previous submissions. The only issue therefore is one of costs. I am of the view that the appeal obviously should succeed, but on the question of costs, Vodacom could or should have filed the information earlier and perhaps there would have been no appearance even before this Committee. It is a matter of equity and applying my mind to the issue as a judicial discretion, I will make no order for costs.

In the conclusion, the order that the Appeal Committee makes is that the appeal is upheld, but there will be no order as to costs.