Book extract: Cliff recounts dark days

When M-Net fired Gareth Cliff from ’Idols’ over a tweet in response to the Penny Sparrow scandal (“People really don’t understand freedom of speech”) he was nervous about suing a deep pocketed media behemoth. But as he recalls in this extract from his book 'Cliffhanger: Confessions of a Shock Jock’, an unlikely ally in Advocate Dali Mpofu convinced him he had no choice but to fight — and win

Dali is masterful and will remain one of my great teachers. When the EFF's Floyd Shivambu put out their statement, mostly condemning me as a racist and horrible human being, I admit that I found it confusing.

I thought I had a good rapport with Julius Malema and I felt that I understood many in the EFF when it came to their disillusionment with the ANC and their passion for the good people of South Africa.

Julius and I have something of a parallel relationship. I've been called "The white Julius Malema" for being outspoken and unapologetic, and he has often found himself likened to me for similar reasons.

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We both say what we think, and we often say what other people think, which means we make a lot of friends and enemies. In fact, he once said to me: "There are people who don't like me and there are people who don't like you ... But there are MORE people who like you and there are MORE people who like me."

Of course we would probably disagree on many things, but I think he's an extraordinarily passionate man with a great deal of charisma and influence. When we launched CliffCentral.com, Julius was my second guest, in an hour-and-a-half-long conversation that many people said was his best public engagement to date. He came out as eminently likeable and smart.

In its statement, the EFF said that they acknowledged Advocate Mpofu's professional right and obligation to represent whomsoever approaches and briefs him on any issue that relates to law, and that, in their view, professionals carry an obligation to provide any form of professional assistance to all people, irrespective of their race, prejudices and background.

They went on to say, however, that they "hold a view that Gareth Cliff's defence of Penny Sparrow's racist remarks represents the worst form of racism. The EFF believes that Gareth Cliff is a racist, who holds white supremacist views consciously and subconsciously."

They also brought up that notorious tweet about the late health minister, Manto Tshabalala-Msimang, which was now being shared by minister Fikile Mbalula and others to prove I was a racist. How could Dali wear both hats? I was perplexed.

When I asked Dali what he thought of this statement, he said it was just "posturing" - I learned a great deal about posturing during this time. But he also said that this is exactly why we had to challenge the M-Net decision: their actions had opened me up to such "unwarranted attacks" and "knee-jerk labelling" and it would be good for us if it was raised in court by the opposition.

block_quotes_start Some of our valued clients were being tagged on Twitter, which understandably scared them, and it was now beginning to impact negatively on my team and business block_quotes_end

And it was. It was used in court by M-Net's defence team to support their position of my being the poster boy for racism. They probably thought it would put Dali in a difficult position, but it played right into his hands.

I interviewed Julius on my show on CliffCentral a few months later and had the chance to discuss this with him. We both agreed that it's better for the racists to speak out so they can be identified.

Because I'm white, it looked like I was supporting Penny Sparrow. There were times when I was sure that this must be an episode of House of Cards and that Frank Underwood would appear at any moment.

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sub_head_start M-NET HITS BACK HARD  sub_head_end

By Thursday that week, January 21, M-Net had not met the deadline to respond, saying they would reply by Friday. But nothing came on Friday. Again, Friday night seems to have been chosen as the time for M-Net to release statements.

At the same time as the responding affidavit was sent to Eric Mabuza, it was published on the M-Net website before being submitted to court. This was contrary to usual legal procedure, since these papers are typically first sent to the parties and the court before being published.

These are the tricks that lawyers play, so I'm learning. It was, I suspect, aimed to intimidate. M-Net hit back really hard. Two Fridays before, I had been axed from Idols for "lacking empathy for the history of the country"; now I was not only "poison" but also the "poster boy for racism". Wow! Twitter was lit once again.

block_quotes_start You really have to trust your representatives, even if you're not sure you can afford to lose. In other words, you have to grow a big pair of brass balls  block_quotes_end

By this time I had pretty much quit Twitter, but from what I'm told, "Yolisa Phahle says Gareth Cliff is poison" was the order of the weekend. By making their response public, M-Net's statement allowed a trial by Twitter before the matter was even heard in court. I don't know if I was feeling anything at this point, but I knew that I was not in a good place.

Even before M-Net responded, all sorts of well-meaning folk (some of them lawyers and some complete strangers) were coming forward with concerns. How can it be considered urgent by the court? It's just a TV show.

How can you prove that you had been contracted if it's just a string of e-mails? What's Dali Mpofu's agenda? You'll never win against such a big corporation! Do you realise this will bankrupt you? If you pursue this, it will sink you and CliffCentral. They put the fear of God into me, and I'm not even sure which god I should have been afraid of.

Some of our valued clients were being tagged on Twitter, which understandably scared them, and it was now beginning to impact negatively on my team and business.Once the M-Net affidavit went public, it got worse.

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It's never nice to hear the unpleasant things said about you, much less in public, and exaggerated in order to justify the case against me. That's how court battles are played out - with acrimony.

I had interviewed Yolisa Phahle just a couple of months earlier, and I was sure that the ugly things said about me didn't necessarily come from her. She's actually a gracious lady.

I was nevertheless close to withdrawing, no matter what the consequences so far might be. Rina picked up the phone and called Eric to ask him if we even stood a chance. I'm no stranger to controversy, but this felt more sinister than anything that had come before.

We met with Dali and Eric over the weekend, and Dali pretty much said that I had come too far in my career and my commitment to South Africa to wimp out now. When I was worried about the potential costs, he said that if I didn't protect my reputation and let the Twitterati steamroll M-Net into firing me unlawfully, it would impact on any chance my business had of surviving. He was 100% correct.

People don't understand free speech at all = Gareth Cliff is poison. That's a hell of a leap.

sub_head_start MY DAY IN COURT  sub_head_end

Although I studied law at the University of Pretoria, I never got the degree. Instead, I switched to history and international politics, which I thought would be more fun.

The idea of studying law probably seemed enticing to me because people don't mess with you when you're a lawyer. You always need lawyers when horrible things happen - divorces, disputes, deaths, bankruptcies and crime. The truth is that most of the work a lawyer does is dreary administrative deskwork.

The amount of time spent doing the things that TV law shows portray is a small slice of the life of even specialist litigators. I don't think I could ever have been as good as the best practitioners.

When you go through this kind of process, you sit with knots in your stomach. The costs of such an action are, for most people, out of reach. You have to let it all hang out, let the media pick up on every small detail of the kind that most people never share with anyone else, and give yourself over to the mercy of the court.

block_quotes_start I chose to wear a blue suit because it's not as confrontational or sombre as black, but I decided to wear a tie so I didn't look too cavalier about the whole thing block_quotes_end

Lawyers are adversarial and combative; they strategise, manoeuvre and bluff each other like great poker players, and you really have to trust your representatives, even if you're not sure you can afford to lose. In other words, you have to grow a big pair of brass balls.

When M-Net called me to that meeting in January to deliver the news that they wouldn't need my services for season 12 of Idols, I walked out with an eye on the silver lining. I thought I was finally free of the last remaining tether to any kind of employer; I was in a very real way a free agent.

CliffCentral.com was growing nicely, and I thought I could pour my heart and soul into it. Part of me was uncomfortable with the perception that I had been fired, and even more uncomfortable about the rumours about why I was fired, but I thought we'd muddle through and deal with problems as they arose. In retrospect, that might have been a dangerous move.

Dali Mpofu offered sage advice; he told me that the court is a great place to state your case, to stand up for what you believe in, and to clear your name. He also persuaded me that if you let poisonous monikers linger, they become the headlines in the story of your reputation. Of course he was right. I had to throw my hat in with him.

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We had a small but powerful team: attorney Eric Mabuza, Senior Advocate Dali Mpofu - our nuclear weapon - and his juniors, Advs. Tembeka Ngcukaitobi and Frances Hobden. M-Net brought about 14 attorneys from Webber Wentzel, two senior advocates and a junior. Here was little old me, with our tiny media business up against mighty Naspers.

The feeling that all those people in the court were there because of me was terrifying too; I was engaging the judicial system in a brazen way to assert my rights in a contractual dispute and I felt somehow guilty for taking up the court's time. It was intimidating, and I'm not even talking about the press in and outside the court, the noise and controversy on social media and the very uncomfortable feeling that I might let down some people I respected.

I don't know if you've ever been in a court of law, but there are all kinds of rules and traditions. A courtroom has an air of gravity and seriousness to it, not only because what goes on there has real-life consequences, but also because in this case there were so many people who were interested in what might happen.

I chose to wear a blue suit because it's not as confrontational or sombre as black, but I decided to wear a tie so I didn't look too cavalier about the whole thing.

block_quotes_start Not only was I now the poster boy for racism who had supposedly tarnished my own reputation, but I was also being lumped in with a convicted murderer block_quotes_end

There were reporters in the front, second and third rows, and Eric actually had to ask them to move up so I could find a seat. I sat behind my legal team and watched them sort through a mountain of paperwork, which made me even more nervous, but I tried not to let it show.

Attorneys wear suits in the High Court and advocates wear robes. The advocates' robes have a funny piece sewn on the back that traditionally used to be a pocket you'd put your money in when they represented you.

They also wear little bibs and plain white shirts, and under the robes they have something called a "dust-jacket", which is almost a jacket and almost a waistcoat. Senior advocates wear robes made of silk (that's why we call them "Silks") and use the letters SC after their names. They also carry red bags to carry their robes when they're not in court. Junior advocates have blue bags and get paid less.

A lot of official buildings in South Africa have wooden wainscoting on the walls. During the apartheid era they discovered the ugliest way to apply the wood to the walls - usually in varying thicknesses of vertical planks, in a light-coloured, varnished hardwood. It has the effect of dampening sound and of making you feel that apartheid wasn't a great time for interior decorating. The High Court building in Johannesburg, as my sister warned me, is also famous for smelling of urine.

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The judge, Caroline Nicholls, walked in and we all stood up. She bowed her head to us and we did the same to her. Then Dali Mpofu was on his feet, first placing on record that this case was not about racism as both parties were in agreement that I wasn't a racist, as M-Net had stated in their first press statement.

He then meticulously went through the contractual issues, stating his case. It wasn't the most exciting thing I've watched, and if it hadn't been about me I might have nodded off a bit. When Wim Trengove SC got up to argue M-Net's case I got a little worried. He has a larger-than-life reputation and was one of the advocates who successfully argued against the death penalty in State v Makwanyane in 1995.

We had studied that case in our first year at law school. In fact, he was admitted to the Johannesburg Society of Advocates in 1975, before I was even born.

Advocate Trengove seemed belligerent, and said awful things about me (which wasn't my favourite part of the day), dismissing my contractual agreement with M-Net and slating my reputation. He added that Idols judges were hired to "entertain, not shock and offend".

Judge Nicholls addressed this in her lengthy judgment, saying, "It cannot be ignored that Cliff's value as an Idols judge has been his tendency to shock and provoke, an image that M-Net has apparently supported, or certainly overlooked, until now."

Even worse, though, was when Oscar Pistorius was brought up. Advocate Trengove said that Oscar's sponsors had exercised their right to terminate their contracts with him because of his damaged reputation, which had the potential to tarnish their brands, and that the same should apply to me.

Not only was I now the poster boy for racism who had supposedly tarnished my own reputation, but I was also being lumped in with a convicted murderer.

It took a lot of self-control for me to sit there and hear him say those things without reacting as I might in public. I'm used to hearing people say bad things about me - usually people who don't really know me and a few who are just nasty people - but it's hard to hear those things said in court where you can't explain yourself, and you have to let the lawyers do the talking for you.

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Luckily, Dali got up after lunch and took over. He was passionate, vehement, unrelenting and persuasive. He took shots at Naspers, the parent company of M-Net, chastising them at their cheek in asserting that I lacked empathy for the country when their own record was abominable. He took pleasure in turning Trengove's introduction of the EFF's statement against him, and finished with the observation that "This application might as well have been unopposed!"

The press gasped and chuckled. It was a tour de force, spurring him on to some scathing criticism of M-Net's case, their representation of me and their inability to stick to their own agreement. In a notebook I had taken to court, I wrote: "Watching Dali at work, using words like 'ridiculous', 'absurd', 'scraping the bottom of the barrel' was melodious. He's so adept and comfortable with confrontation that I thought fortune had smiled on me by bringing him in my hour of need."

On Friday January 29, Judge Nicholls took all of four minutes to read her finding into the record. The very detailed judgment (case number 1368/2016) was later made available, but at that moment all I remember hearing is: "The contractual relationship has to be reinstated to what it was. M-Net will pay costs to Gareth Cliff."

When I left the court with Rina, I felt like we'd fought a good fight. It wasn't about getting my gig back on Idols, and it wasn't only about setting the record straight with regard to my reputation. It was a fight for independent contractors who find themselves at the unfair end of contracts drafted by big corporations.

It was about the important, free conversations our nation needs to have and that were stifled by the outrage of the Penny Sparrow debacle. And it was about showing the loudmouths on social media that I wouldn't be bullied, that I was unf**kwithable.

That night, in a familiar Friday night ritual, M-Net posted their response on their website and on social media. M-Net statement: As ordered by the South Gauteng High Court, and as a good corporate citizen that respects the rule of law, M-Net will reinstate Mr Cliff as a judge on season 12 of Idols SA. We believe we did the right thing by taking Mr Cliff off the show. We remain committed to using our platforms to contribute to a united South Africa.

(Whatever that meant. For the first time I was happy to be on the front page of every newspaper the next day, with bold headlines proclaiming this resounding win.)

'Confessions of a Shock Jock' is available in bookshops and online from December 1. It is published by Jonathan Ball and retails for R250.