The Johannesburg High Court has reserved judgment in the highly publicised multimillion-rand civil case involving Mamelodi Sundowns, Pitso Mosimane, and MT Sports Marketing.
“I will reserve judgment in the matter, and the judgment will be disseminated electronically [at a date chosen by the judge],” said Judge Shanaaz Mia on Wednesday.
On Tuesday, the legal battle resumed, with advocates Tembeka Ngcukaitobi and Vincent Maleka (SC) presenting their closing arguments.
Sundowns is demanding that MT Sports director Moira Tlhagale repay the commission in agent’s fees, amounting to about R8.6-million, following Mosimane’s resignation to join Al Ahly, which occurred two months after he signed a four-year deal for the 2019/20 season.
Mosimane’s agent and wife, Tlhagale, has since claimed that Sundowns treated her unfairly in their business dealings due to her gender, race, and relationship with Mosimane.
According to her, the club failed to pay her the agent commission she was entitled to from the first two contracts she negotiated in 2012 and 2016.
Tlhagale also claimed that Sundowns inserted a clawback clause, which was, according to her, not in the contracts of Mike Makaab, the agent of Manqoba Mngqithi, and Steve Kapeluschnik, who represents former coach Rulani Mokwena.
Coerced into signing a contract
In his closing arguments, Ngcukaitobi, the attorney for Tlhagale and Mosimane, refuted Maleka’s (the plaintiff’s attorney) assertion that Tlhagale was not coerced into signing a contract that included a severe clawback.
“There is indeed a reference in the second paragraph [of the document] to the agent’s commission,” Ngcukaitobi said.
“But the most important point is that there was never a demand for that agent’s commission to be repaid, and therefore this was perfectly consistent with the understanding of the defendant [Tlhagale] that the agreement entailed the release from the contract.
“As late as October 2 [2020], and this is now when a letter from Bowmans [Sundowns’ lawyers] arrived.
“The complaint in that letter is about the fact that Miss Tlhagale is accused of having induced several employees to breach their contract to join Al Ahly.”
He continued: “They are specifically mentioned as Kabelo Rangoaga and Musi Matlaba, who had resigned and went to join Al Ahly. So, there’s no demand for the payment of the money [her commission].
“The demand only came on November 1 [2020] for the repayment of the money.
“So, the short point here is that even the correspondence that came after September 29, which is when the agreement was struck, was consistent with my client’s understanding of a waiver.
“So, I was dealing with the actual record, contemporaneous records … things that were exchanged at the time.
“But I want to disabuse the court of this notion that the evidence somehow supported Sundowns.”
Constructive dismissal
In his reply, Maleka not only emphasised that Tlhagale’s race and gender did not constitute discrimination, but also asserted that Sundowns did not constructively dismiss Mosimane.
“The subsidiary arguments Ngcukaitobi made to press with this argument of unfair and discriminatory treatment were that somewhere down the line, Sundowns addressed her as ‘Ms Mosimane’ and later the president [Patrice Motsepe], in the press statement that was released, addressed her as ‘the wife of Mr Mosimane’,” said Maleka.
“And with the greatest of respect, we will submit that our learnt friends have read the press statement out of context.
“There are two press statements. The one that was finally issued by both parties, and according to her input, it is not as if it is a press statement that was issued unilaterally by Sundowns. And it says, ‘Pitso Mosimane and his agent’.”
Maleka continued: “Can I stop there? It records, as a matter of fact and as a matter of law, that the president addressed her as the agent of the coach. It continues as follows: ‘Who is also his wife?
“So, if someone reads an undignified mode of address based on this fact, we will simply submit that you are clutching at straws.
“But in any event, this cannot be a claim of perpetuated race and gender discrimination when Sundowns has already decided to engage here on a one-to-one basis to conclude the terms.
“There is just one last thing that I’d like to deal with about this new theory of constructive dismissal.
“The coach’s press statement, which records his resignation, reads as follows: ‘While I had four years remaining in my contract, this offer [from Al Ahly] is a huge opportunity for me that would not have come had I not had the privilege to be part of the team that led Mamelodi Sundown in winning the CAF Championship and reaching the Club World Cup finals.’
“So, we would respectfully submit that this is not evidence of someone who has been constructively dismissed.
“This is an acknowledgement by someone who makes it quite clear that although he had four years to go, he decided to go for better and greener pastures, which came about because of his involvement with Mamelodi Sundowns,” said Maleka.