Mamelodi Sundowns’ demand for the company owned by Pitso Mosimane’s wife, Moira Tlhagale, to pay back at least R8-million for commission it received after he and the club parted ways was unconstitutional, invalid and unenforceable.
This because the entity was not party to the mutual separation agreement between him and the club.
Mosimane’s claim is contained in the court papers filed in the Joburg High Court by Sundowns’ legal counsel, Kevin Iles.
Iles revealed this when he informed the court about the “issues not in dispute” and “issues in dispute” in the imminent legal showdown between Sundowns, Mosimane and his wife’s eponymous company, Moira Tlhagale Sports Marketing and Management.
The serial PSL title winners, who are the plaintiff in the case, filed a lawsuit against Tlhagale’s entity and Mosimane, who are the first and second defendants respectively, after they ignored several letters of demand from the club’s lawyers to pay back the commission.
This after Mosimane’s acrimonious departure from the club following a fallout with the then club president Patrice Motsepe in 2020.
The club said the quantum was for the 44 months that Mosimane was supposed to have spent coaching the team, but instead left to join Egyptian outfit, Al Ahly.
The PSL outfit said the clause in the contract that Mosimane signed stipulated that Tlhagale’s company should pay back the commission if Mosimane left the club before the lapse of his contract.
However, Mosimane and the entity refused to pay back the money, arguing that the clause in the contract called “head coach agreement” was unconstitutional, invalid and unenforceable. This because, they said, the clause provided for the repayment of the commission paid to his wife’s company even though Mosimane was not a party to the payment agreement.
The papers also state Mosimane and the company challenged the clause because it required the repayment of the commission regardless of the circumstances which resulted in the agreement’s termination.
Mosimane and the entity further argued that the clause was unenforceable and unconstitutional because it made the repayment of the commission due by his wife in circumstances where he terminates his contract to which she is not a party.
Sundowns denied Mosimane and the entity’s contention, arguing that the company was the revered mentor’s agent.
“The second defendant acknowledged that the commission would be paid to the first defendant on a particular basis.
“The second defendant acknowledged that the commission payable to his agent was to be paid upfront on the assumption he would serve out the term of the head coach agreement and he voluntarily agreed to be liable for the commission in the event he failed to fulfil the term of the contract,” read the papers.
Sundowns also said there was nothing unreasonable about their demand for the repayment of the commission because they expected the contract to run to its full term but it did not.
“There is nothing unreasonable about such a clause, the second defendant agreed to the clause and commission was paid in full and upfront on the assumption that the agreement would run to its term,” read the papers.
Sundowns also said the company had no entitlement to any commission at all.
“Properly interpreted, the first defendant was paid a commission upfront, calculated on the premise that the second defendant would remain employed for a particular period of time,” read the papers.
Iles also said Mosimane and the entity had not provided any cogent reason in support of the allegation that the clause was unconstitutional, invalid and enforceable .
The club also challenged Mosimane and his wife to prove the allegations which they said led to the breakdown of their relationship with the Chloorkop side.
Sundowns also rejected Mosimane and the entity’s claim that the matter should have been referred to the National Soccer League’s Dispute Resolution Chamber and not to court.
The club said although the contract made provision for dispute of any kind to be referred to the body, it contended that the PSL did not have a jurisdiction over this matter.
The club also said Mosimane and the entity did not seek a stay of action in terms of the Arbitration Act, saying the jurisdiction of the court was not ousted by alternative dispute resolution clause.
Mosimane and the entity have hired legal eagles Thembeka Ngcukaitobi and Jabu Chanza to represent them in their showdown with the team.
On the other hand, Sundowns did not leave anything to chance as they too have hired top legal brain, Iles, as their counsel.
Ngcukayitobi confirmed that he would represent Mosimane and the company in question.
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