Sunday Times STLive By PREGA GOVENDER, 2012-03-11

Former Miss SA vindicated

Basetsana Kumalo.

Just over four years ago former beauty queen Basetsana Kumalo was spitting mad after an unflattering photograph of herself wearing a blue tracksuit and sneakers was taken while she was trying on helmets in an upmarket cycle shop.

But on Friday Kumalo jumped for joy after a landmark ruling that the unauthorised publication of her photograph in adverts was an infringement of her rights to privacy and dignity.

In his ruling in the Johannesburg High Court, Judge Phillip Boruchowitz also said that the former Miss South Africa should be entitled to "sentimental" damages.

Kumalo has been embroiled in a protracted battle with Fourways-based Cycle Lab after the company published adverts featuring her in the Cycling News brochure and in a magazine without her consent.

She claimed R500000 in damages saying the "Bassie" brand, which she had registered as a trademark, had been damaged.

Judge Boruchowitz ruled that, by agreement between the parties, the quantification of damages be postponed and that Cycle Lab pay her legal costs.

Kumalo, who was crowned Miss S A in 1994, has had ambassadorial roles for many companies such as Revlon, Ackermans and Miladys .

She had visited Cycle Lab in February 2007 on the advice of her husband, Romeo, who had encouraged her to take up cycling. But while Kumalo was in the store, a photographer had snapped her picture.

In court last year, she reportedly described the advert as "low-class", "unprofessional" and "the worst picture" the public had seen of her.

She was not wearing make-up or lip gloss and a pair of sunglasses was dangling from her track suit top.

She told the court: "This picture is an insult to the 'Bassie' persona I have worked so hard to achieve for 20 years. I am my business. My face is money."

Advertising contracts had precluded her from appearing in adverts or promotional material featuring other brands.

A director of Cycle Lab, Andrew Mclean, argued in court that they had used her picture because they needed a black woman for the advertisement.

Judge Boruchowitz said in his judgment it was clear that Kumalo was a celebrity and a public figure who had built a successful career . "The plaintiff (Kumalo) was embarrassed as she feared that her friends, professional colleagues and peers would assume that she had consented to the publication of the photograph, thereby lowering her professional standards and standing."

Kumalo said she felt vindicated . "You can't take a picture of Puff Daddy (without his permission) and put him on a billboard for Pepsi and think that it is acceptable. For me, it was a matter of principle. Why should other companies pay me top dollar ... and then a picture is taken of me while I am buying a helmet without my permission and used commercially."

She said she was so excited at the prospect of cycling with her husband on Saturdays that she bought all the cycling equipment from Cycle Lab.

But after her pictures surfaced in the adverts, she gave her bicycle to her gardener and has refused to cycle. "I felt violated, aggrieved and exploited. It just didn't resonate because I had been wronged. I decided to take up yoga instead."

Her lawyer, Bally Chuene, said it was a landmark judgment as it was the first case of the illegal use of a celebrity's image for commercial gain. But Mclean said: "I am sure we are going to pay her for sentimental damages but she didn't need to go to court."