WeeklySA_AdminFRIZZY AFFAIR:Applicants demand millions of rand for women’s organisations
By Monk Nkomo
Clicks Group and Unilever SA have been slapped with a multimillion-rand class-action lawsuit by 18 black women who demand that each must pay 10 percent of their annual net profits for the next 10 years – as damages for “the offensive, unlawful, racist and demeaning advertisement about black women’s hair they posted on their website two years ago”.
The relief is sought by the women in papers submitted in the Equality Court in Cape Town, requesting a declaration that Clicks and Unilever pay this amount to women’s organisations that promote and support gender issues, women’s wellbeing and upliftment programmes in the nine provinces.
In the summons served on the two companies, the women said the lawsuit followed the posting of the TRESemme advertisement during May and September 2019 by the respondents that portrayed black women’s hair as ‘’ frizzy and dull’’ in one image and ‘’ dry and damaged’’ in another and the depiction on non-black women’s hair in one image as ‘’ fine and flat’’ and in another as ‘’ normal’’. The advertisement drew countrywide outrage and looting of Clicks stores by black communities.
The applicants submitted that despite the apology that followed from the respondents, the advertisement disseminated the idea which propounded the racial inferiority of black females based on their hair texture.’’ We submit that the apology is not enough. It is neither sincere nor is it equitable bearing in mind the magnitude of the hurt and offense that the respondents have caused’’, they said.
The 18 women added that dignity was a unique quality that was priceless and irreplaceable and constituted every individual’s inherent dignity. ‘’ It is therefore submitted that an offensive depiction of a unique quality that is attributed to a specific group, in this case, black females’ hair, is an infringement of their dignity’’.
They 18 also submitted that for far too long black people, in particular black females, have had to bear the brunt of racism in their own country. This had to be stopped by the courts. The respondents, they added, had arrogantly settled this matter with the EFF, a political party. ‘’ The terms thereof are an insult to black female dignity – 10 000 pieces of sanitary pads’’.
The applicants submitted that South Africa has been trying to heal since 1994. The TRESemme advertisement had taken away all that effort. ‘’ There has been little or no support from a minority white section of big corporations. There has been no outrage from non-black females in support of the demeaned black females. This must make one think, does it not?’’ To compound the humiliation, the offensive advertisement came in the wake of the Black Lives Matter social movement that was raging across the world, the Applicants said. This is a movement aimed at spreading awareness of discrimination and racism. The hair advertisement was demeaning and psychologically damaging. Its impact was without measure, the Applicants said.
‘’ The advertisement reminded the Applicants and many other black women across the country, of the infamous pencil test of the apartheid days. The test entailed white policemen in particular, sticking a pencil in black people’s hair. If the pencil rested comfortably in the hair when the head was shaken, such person was classified not white but black. However, If the pencil dropped when the head was shaken, the person was classified white and enjoyed all the perks that came with whiteness.’’
The Applicants also submitted that the negative portrayal of black females’ hair as somewhat uninteresting, dull and unattractive is one that made use of historical benchmarks of discrimination against black people. ‘’ The unfair discrimination has resulted in severe inequality and psychological trauma on black people’’.
According to the Applicants, both Clicks and Unilever companies have been doing business in South Africa since the apartheid era. They were aware of the sensitivities around the foisted notion of the superiority of whiteness. The Respondents ought to be alive to the struggles for fairness and equal treatment that black people are forced to assert on a daily basis.
They added that the Respondents’s intentions were clear and deliberate. ‘’ The racist content of the TRESemme advertisement undermines the progress the country has made to dismantle systematic racism and the advancement of the values of the Constitution and the Equality Act.’’
The fallout in the social media and the protests that followed the advertisement, the Applicants submitted, supported the motion that the apology furnished by the Respondents was not enough. The magnitude of the impact that the advertisement has had on the black community and especially black females, required relief of the same magnitude.
The Applicants submitted that Clicks was notorious for causing offences and had no respect for black people in general and females in particular.They cited the Clicks BabyClub advertisement which they say, showed images of a happy non-black family of a man and a pregnant non-black female, seemingly enjoying their pregnancy together. Alongside this image is another of a black female alone with a child.’’ This message is clear for all to see. Black women have children with absent fathers, or babies outside of the normal family units. This is racist to the core. In doing so, Clicks perpetuates the stereotype that black men and women are irresponsible and or are unworthy of living life such as that depicted by the non-black couple in the advert.’’ The Applicants also cited two other Dove advertisements including one which showed a black woman ‘’turning herself white’’ after using Dove Body Wash.
• Clicks total turn over for the year 2019-2020 financial year increased by 7. 2% to R31.4 billion according to the group CEO report.
• Unilever SA, which employs about 3 000 employees in its 971 companies countrywide, generated about 518.4 million US dollars in revenue. It’s global revenue in 190 countries in 2020 financial year amounted to 50.7 billion Euros (about R862 billion)
THE RELIEF SOUGHT BY THE 18 WOMEN
By Monk Nkomo
• ‘The current position in our common law is that the only remedy available to a person who has suffered an infringement of a personality right is a claim for damages.
• Although the Respondents did apologise, their lack of remorse in the letters of apology does not constitute significant relief for the harm caused.
• We are alive to the fact that it will be difficult to quantify the hurt a person has caused another. However the letters of apology do not suffice in this regard.
• The Court to consider the impact the advertisement had depicted and the impact it has had on the dignity of black females.
CLICKS GROUP LTD RESPONSE :
The application must be dismissed by the court because amongst others, there is no authority, precedent or justification for the financial sanction sought by the Applicants. It also ignores the many restorative and remedial measures that have been initiated and implemented by Clicks Group Ltd.
Clicks Group Ltd did not commission or publish the TRESemme advertisement, or have anything to do with the dissemination of the edited image. The application is without merit. Clicks Group Ltd does not deny the hurt that was caused in relation to the TRESemme advertisement.
It has taken appropriate steps to acknowledge and address that hurt, as a responsible corporate citizen that is committed both to its customer base and to the South African project of reconciliation, human dignity, substantive quality and the celebration of diversity.
The TRESemme advertisement was the communication of retail information about beauty products. It did not deny the Applicants opportunities, impose costs on them, or otherwise interfere with their ability to exercise their rights. It therefore did not amount to ‘discrimination’.
The Applicants have sought relief against Clicks Group Ltd and have refused to join Clicks Retailers to these proceedings. However Clicks neither commissioned nor published the TRESemme advertisement. It also had nothing to do with the editing thereof or the subsequent publication of the distorted image on social media. Clicks Group Ltd therefore cannot be held liable as suggested by the Applicants.
UNILEVER SOUTH AFRICA (PTY) LTD RESPONSE.
There is no basis to conclude that the actual content, viewed objectively and as a whole, propagated the idea that black women or black women’s hair was inferior. The Applicants’ claim therefore falls to be dismissed.
The Applicants have failed to establish any breach of the Equality Act. Once that is so, no question of remedy arises.
Even if we are on some basis wrong and a breach of the Equality Act has been shown, the Applicants’ proposed remedy is still untenable.The Applicants seek an order directing Unilever to pay 10% of its annual profit for a period of 10 years towards women’s organizations in the nine provinces of South Africa.
There is no precedent or basis for such relief. At no stage has the Equality Court or even the High Court ever made an order approximating the scale of the order now sought.
We therefore submit that even were this Court find that there has been a breach of the Equality Act, the appropriate relief is a declaration coupled with a mandatory apology. If any damages award is to be made, it would have to be purely nominal in nature.
THE APPLICANTS :
Ntombizodwa Cingiswa Baba, Langathani Thembelihle Sibanda, Lozitla Mahlangu, Katlego Menoe, Zoleka Radebe, Winkey Maluwa, Fezeka Mshona, Tshepiso Mosidi, Khanyisile Hlatshwayo, Lesego, Motowane, Ofentse Mbhuthi, Bongiwe Badela, Siphokazi Zamxaka, Nwabisa Phika, Zanele Zamxaka, Mbali Macu, Duduzile Faith Macu and Nomonde Aphane
