In May 2019 an advert was placed on the Clicks website for TRESemmé Botanic, “the natural choice for moisturised hair”.
The advert stayed up, with no apparent objection, on the website for more than a year. Then, in September 2020, a “cropped” version of the advert was posted on social media by “unknown third parties”, Clicks says in court papers.
What happened next is well known. The post went viral, leading to widespread condemnation and protests at Clicks stores across SA. Both Clicks and Unilever SA, which produces and markets TRESemmé locally and prepared the original advert, apologised and took a number of remedial steps.
But Ntombizodwa Baba and 17 other black women were not satisfied. They took the two companies to the Equality Court, saying the advert was racist and amounted to unfair discrimination under the Equality Act.
In their court papers, Baba and the other applicants do not differentiate between the advert on the website and the one that circulated on social media, saying both were “offensive and indefensible”.
Their counsel, Taki Madima SC, says the advert “featured images that depicted black women’s hair as ‘frizzy and dull’ in one image, and ‘dry and damaged’ in another. In the same advert, non-black women’s hair was depicted as ‘fine and flat’ and in another as ‘normal’,” says Madima.
Madima says in papers that this portrayal of black women’s hair “promotes historic racial stereotypes. The negative narrative is a constant reminder of the pressure placed on black females to live up to European beauty standards in order to be accepted in society as normal or attractive. While some may aspire to whiteness, the applicants do not.”
The applicants want the court to order the companies to pay 10% of their annual net profit for 10 years to organisations that empower women — an unprecedented claim.
“At no stage has the Equality Court or even the high court ever made an order even approximating the scale of the order now sought,” says Unilever in its legal argument.
Unilever’s counsel, Steven Budlender SC, says since the applicants themselves refer to the website advert, this is the one that must be assessed by the court; and it must be “viewed in context as a whole”.
He argues that in their affidavits the applicants instead focus “impermissibly” on the cropped images, out of context.
Budlender argues that the advert as a whole contains eight images of women. Four of these are black women. Two are illustrating “dry & damaged” and “frizzy & dull” hair, the other two “are portrayed as beautiful and glamorous alongside a slogan saying “the natural choice for moisturised hair”.
“There is accordingly simply no basis to conclude that the actual content, viewed objectively as a whole, propagated the idea that black women or black women’s hair was inferior,” he says.
The Equality Act prohibits unfair discrimination on grounds of race, including disseminating ideas that “propound the racial superiority or inferiority of any person”. The act defines discrimination as conduct that “imposes burdens, obligations or disadvantages on; or withholds benefits, opportunities or advantages from” any person.
Counsel for Clicks, Ngwako Maenetje SC, says the applicants’ case fails here. Though acknowledging the advert was hurtful and offensive, Maenetje says it did not discriminate.
“Contrary to the express requirements of the Equality Act, the applicants do not allege that the TRESemmé advertisement imposed a burden, obligation or disadvantage, or withheld a benefit, opportunity or advantage,” says Maenetje.
But Madima says Clicks defines discrimination “very narrowly”. “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect,” he says.
“The advert did not portray black female hair as equal to that of non-black females,” he says.
But Maenetje says the applicants’ submissions make “hyperbolic and insupportable claims”. He gives as an example the statement by Madima that SA “has been trying to heal since 1994. The TRESemmé advertisement has taken away all that effort, one-sided as it is”.
Maenetje says: “That is a complete distortion. Whatever interpretation one places on the TRESemmé advertisement, it has not undone all of South Africa’s efforts at nation building.”
The case is set down to be heard in the Western Cape High Court on October 20 and 21.