The high-profile multimillion-rand legal battle that involves Mamelodi Sundowns, renowned coach Pitso Mosimane, and MT Sports is back at the South Gauteng High Court in Johannesburg for closing arguments.
On Tuesday, top legal eagles, Advocate Tembeka Ngcukaitobi SC and Vincent Maleka SC, went toe-to-toe before Judge Shanaaz Mia, This on the issue of Sundowns demanding that MT Sports director Moira Tlhagale pay back commission in agent’s fees in the region of R8.6-million.
Tlhagale doubles up as the wife and agent of former Sundowns coach Mosimane.
Claims she was undermined due to her race, gender
In June, as part of her testimony, Tlhagale claimed that Sundowns undermined her in their dealings. She claimed they did this because of her gender, race, and relations with Mosimane.
She also claimed that Sundowns did not pay what was due to her in agent commission. The said commission was from the first two contracts that she negotiated in 2012 and 2016.
Tlhagale said the club also inserted a clawback clause, which was, according to her, not in other agents’ contracts.
The other agents include Mike Makaab, who represents current head coach Manqoba Mngqithi. Steve Kapeluschnik, who is the agent of both former coach Rulani Mokwena and Johan Neeskens, whom Mosimane succeeded in 2012.
Defence says she willingly signed contract
However, Sundowns legal representative Maleka disagreed. He told the court that Tlhagale was not forced to sign a contract with harsh clawback conditions.
“In this case, the parties freely and with the requisite’s animus contra handi agreed to negotiate in good faith. They agreed to conclude further substantive agreements, which were renewed over a period of time,” Maleka said.
“So, it would be untenable to relax the maximum factors in this case. Because that would be tantamount to the court making that agreement for the parties.
“But anyway, we had drawn attention to those two possibilities. And we have analysed the facts that were at issue in that case of the Supreme Court of Appeal. Simply to answer two points.
“The first is that the defendant’s witness, Dr [Rejoice] Simelani acknowledged that the clawback provisions in the intermediary agreements were harsh. And of course they are. But that does not make the clause consent contrary to public consent.
“But the law remains that the harshness of the contractual provision does not of itself render it contrary to public policy. Her Ladyship can understand the foundation of Paragraph 30 of Muhammad’s case. Which is that parties to a contract are motivated by their commercial motives. And they are there to protect their commercial interests.
“It is open to a party to the contract not to accept the harsh consequences of the contract. And it is open to a contract to protect himself or herself against the harsh consequences of the contract.
Case resumes on Wednesday
“We will get to part of Ms Tlhagale’s evidence, which sought to suggest that she was compelled to sign [the contract]. We will show in that regard that nothing could be further from the truth.
“She was not forced to enter into this intermediate agreement. And she had the election and fundamentally, part of that election is that it was always open to the coach. It was always open to her as the agent coach to accept the offer of Al-Ahly. Which was on the table for both when they were negotiating the contract with Sundowns.”
The case will resume on Wednesday morning, with Ngcukaitobi, who represents Mosimane and MT Sports. He is expected to respond with opposing closing remarks before a final judgment is made.
