Gareth Cliff. Picture: SUNDAY TIMES
Gareth Cliff. Picture: SUNDAY TIMES

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M-NET must be held to its contractual obligations and keep Gareth Cliff on as a judge, said Mr Cliff’s counsel Dali Mpofu on Tuesday.

Mr Cliff’s case — heard urgently in the Johannesburg High Court on Tuesday — is the first court case (a number are expected) to arise out of the heated public debate on racism, which followed the now infamous Facebook post by former estate agent Penny Sparrow.

M-Net decided not to keep Mr Cliff on as a judge on the popular show Idols SA after he weighed in on the debate, defending Ms Sparrow’s right to say what she said and adding that "people don’t understand freedom of expression at all".

In her post, Ms Sparrow likened black people to monkeys, lamenting their being "allowed loose" onto public beaches because it "invited huge dirt and trouble and discomfort to others".

Mr Cliff’s tweet itself drew heavy criticism and accusations that, by defending Ms Sparrow, Mr Cliff was himself a racist.

Mr Cliff wants the court to order that Idols auditions — due to begin on Friday — may not proceed unless he is there as a judge because he had a contractual right to be there.

Mr Mpofu began his address to court by saying this case was not about whether Mr Cliff was a racist, as both sides agreed he was not. Rather the case was about whether there was a contract in place between Mr Cliff and M-Net.

Mr Mpofu went through correspondence and e-mails that, he said, showed that there was clearly a contract in place. It was a "crucial principle of our law" that contractual obligations should be honoured, he said. Courts were there to protect "the little guy" when he was being "bullied," said Mr Mpofu.

But M-Net’s counsel, Wim Trengove, said there was no contract in place. In any event, even if he did have a right, that right could only last for a week because under the contract claimed by Mr Mpofu, M-Net could terminate on a week’s notice without any reasons given.

He was asked directly by Judge Caroline Nicholls whether M-Net was effectively saying that Mr Cliff’s view — the school of thought that the right to express even the most abhorrent speech should be defended — was incompatible with its brand.

Mr Trengove responded that whether Mr Cliff had a constitutional right to say what he did was a separate question to whether this meant that M-Net had to keep on, as its brand ambassador, someone who had become a "poster boy for racism".