The Johannesburg High Court has dismissed Pitso Mosimane’s wife and agent Moira Tlhagale’s claims that Mamelodi Sundowns discriminated against her simply because she was a black woman.
In a judgment delivered recently, Judge Shanaaz Mia said Mamelodi Sundowns could not have possibly discriminated against her race and gender because the club did not sign a contract with her as a natural person but with her entity, Moira Tlhagale Sports Marketing and Management (TSM), which is a juristic person.
Delivering the judgment, Mia said that in seeking to demonstrate that the agreement was unfair and unreasonable, Tlhagale testified that she was treated differently because she is a black woman and Mosimane’s wife.
“She stated that she did not receive a commission after negotiating the agreements between Mr Mosimane and Sundowns in 2012 and 2016.
“In her view, any other intermediary in her position would have been compensated.
“To support this, she emphasised that white male intermediaries were not treated in the same manner. She further attributed the treatment she received to what she believed was an instruction issued by Mr Motsepe,” stated Mia.
However, the judge also stated that Sundowns director Dr Rejoice Simelane explained that the reason the Brazilians did not pay a commission to an intermediary for the negotiation of the 2012 and 2016 employment contracts with Mosimane was that they were not aware that he had an agent at that stage.
Mia agreed that Tlhagale’s failure to produce documents to support her claim that she was her husband’s agent during the 2012 and 2016 contracts lends credibility to Sundowns’ version that Mosimane had no intermediary.
The agency, stated Mia, had later successfully negotiated a R1.5-million salary per month for Mosimane and secured a favourable R8.6-million commission, which was 10% of his package.
“By comparison, the agency secured a more favourable contract than the intermediaries represented by white males had secured,” the judge wrote.
The evidence presented by Tlhagale, further said the judge, relating to the agency being treated differently focused on her experience during the negotiations with Sundowns and did not relate to the agency.
“TSM, as a juristic entity, is distinct from Ms Tlhagale as an individual,” Mia wrote, dismissing Tlhagale’s assertion of her unfair treatment.
The judge also poked holes in Tlhagale’s claims of unfair treatment compared to white male agents.
“The defendants’ amended plea avers that the agreements concluded between TSM and Sundowns, when compared to the agreements concluded between Sundowns and two companies that concluded intermediary agreements with it, discriminate against TSM based on race and gender.”
To prove the discrimination based on race and gender, Tlhagale presented contracts concluded between Sundowns and JDR Consulting and Prosport International, which provided for a commission payable in three instalments.
The judge said contracts did not place any obligation upon the intermediaries to repay any portion of the commission upon termination of the contracts.
She further said that when compared to the intermediary agreement concluded with TSM, the Prosport and JDR Consulting did not contain a claw-back clause and did not provide for the advance payment of the commission.
Mia stated that the contracts did not place any obligation on the two white-owned agencies to repay the portion of the commission already paid if the employment relationship between the coach and Sundowns was terminated on any ground before the expiration of the contract.
In response to the submission that Sundowns discriminated against her based on race and gender as the negotiator for Mosimane, Sundowns argued that Tlhagale is not TSM.
The judge again agreed with Sundowns on this one.
“The comparison made by the defendants was artificial,” Mia said, “I agree that the comparison does not prove discrimination based on race, especially where Ms Tlhagale, a black woman, negotiated favourable contracts.
The comparison based on the different juristic entities having regard only to the race of the negotiators ignores factors such as the remuneration secured, when commissions were paid and circumstances where the intermediary received the full commission even after an employee resigned in the middle of the contract period.
“It is not possible to draw a conclusion that TSM was treated differently based on race and gender to its detriment compared to other intermediaries.”
She ordered Mosimane and the agency to pay back the R7.9-million commission they received from the Chloorkop-based outfit, but the two are appealing the verdict.
