The advertisement in question appeared in the Sunday Times newspaper in November and was headed: “MTN TopUp, the only contract that gives you Mahala.”
ASA ruled MTN does not own the term, which is a South African colloquialism for the word “free”.
Clear Copy argued MTN TopUp is not the only contract offering free calls or other offers, using Vodacom’s free double recharge minutes and Telkom Mobile’s free calls as market examples.
The attorneys representing MTN argued the word “Mahala” in the operator's advertisement was a reference to MTN’s Mahala offers and not in the actual sense of the word “free”.
The ASA Advertising Industry Tribunal (AIT) ruling stated: “It was common cause in argument before the ASA... AIT that the word ‘mahala’ means free and that the respondent’s (MTN) packages as set out in its notice of appeal have elements of free offerings.”
“The gist of the respondent’s argument was, first, that the use of the word with a capital M has developed into a brand through goodwill that has been acquired over the last four years. Secondly, that a reasonable consumer will not think that only the respondent offers free or mahala minutes in its packages.”
ASA added: “The word ‘mahala’ or ‘Mahala’ is incapable of being acquired as a brand because of its everyday usage as meaning ‘free’ or ‘for free.’ It is used by the respondent to convey to its subscribers and consumers in general that they will enjoy the benefit of free minutes usage under certain terms and conditions”
“Furthermore, the relevant advertisement is not correct, and therefore misleading when it states that it is the only contract that gives mahala or free airtime or minutes. It therefore contravenes Clause 4.2.1 of Section two of the [advertising practice] code.
The ASA AIT has thus requested MTN to withdraw their claim, which must be actioned with immediate effect and the mobile operator is not allowed to use the claim again in its current format in future.