Article by listed attorney: Fawzia Khan
Unpacking the judgment handed down by the High Court
On 28 January 2016 in Gauteng, Judge Nicholls handed down the judgment in which media personality, Gareth Cliff, challenged the severing of ties by M Net’s for its 2016 ‘Idol’s’ season. This is the case where Gareth Cliff brought an urgent interim application in the High Court, demanding reinstatement of his contract with M-Net. For anyone who needs reminding, the incident arose out of the Penny Sparrow’s racist posting on Facebook where she likened black people as ‘monkeys’ and Gareth Cliff response to that in which he posted a tweet, saying "People really don't understand free speech at all".
Cliff brought two applications before the High Court. In the first he claimed the urgent interim relief. In the second application, which has not yet been heard, he claims the following from M-Net: a permanent re-instatement of his 2016 contract with M-Net including future renewals; a declaration that his termination was unconstitutional; payment of damages as well as a retraction by M-Net's of its harmful remarks made of him.
In delivering its judgment (for the urgent interim relief), the court was at pains to note that the issues before the court did not relate to freedom of speech nor was it a case of freedom of speech versus hate speech, nor was it to decide whether or not ‘Gareth Cliff was a racist or supports racists’. The Court said that its role was to see whether there a contractual relationship existed between the Cliff and M-Net and if so, whether it should be restored to its position as of 6 January 2016.
In order to successfully bring an urgent interim application to the court, an applicant, such as Cliff, needs to prove the following to the court: -
i) he has a prima facie right to bring the application; and
ii) he suffers irreparable harm; and
iii) there is no other satisfactory alternative remedy; and
iv) the balance of convenience favours the applicant.
The High Court therefore had to determine whether Gareth Cliff met all the above requirements.
In deciding whether or not Cliff has a prima facie right to bring such an application, there must be no doubt in the court’s mind of the existence of such a right. On this front, the court found that despite M-Nets’ contention to the contrary, sufficient evidence existed, both orally and tacitly, to indicate that an agreement existed between Gareth Cliff and M-Net regarding his appointment as a judge on Idols. The court said that even though there was no written agreement, ‘both parties conducted themselves as though Cliff’s position as an Idols judge was a foregone conclusion”. The court said that “Cliff has shown a prima facie right that he had a contract with M-Net which was terminated without due process”.
The second requirement which Gareth Cliff needed to prove, was that as a result of M-Net’s conduct towards him, he suffers irreparable harm. On this score, Cliff’s counsel argued that him being branded a racist was “tantamount to a death sentence” and said that he (Cliff) has suffered “vitriolic attacks by prominent members of society”. His counsel argued that being labelled a racist caused Cliff to suffer reputational damage and financial harm.
The court was satisfied that there was no alternative remedy available to Gareth Cliff and said that the balance of convenience favoured him. It said that Gareth ‘Cliff would suffer greater prejudice if it refused the application, as opposed to the prejudice M-Net would suffer if the relief was granted.’ The court also found that M-Net did not prove that the Idols brand would suffer if Cliff were to be reinstated on a temporary basis.
Having heard all the arguments before it, the court concluded that Gareth Cliff satisfied all four of the requirements for the granting of interim relief and ordered his reinstatement, pending the finalization of the other part of his claim, where he wants M-Net to permanently instate his 2016 Idols contract.
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