South African Judge Shanaaz Mia on Wednesday reserved her judgment in the matter involving Pitso Mosimane and MT Sports MD Moira Tlhagale, the wife and agent of the coach, against Mamelodi Sundowns.
The civil lawsuit resumed on Tuesday in the South Gauteng High Court in Johannesburg with Sundowns’ senior counsel Vincent Maleka maintaining the club’s case that MT Sports was obliged to repay the outstanding agent’s commission from when Mosimane left Chloorkop for Al Ahly in 2020.
Sundowns are seeking to recover part of the R8.6m in agent’s fees paid to MT Sports when the coach signed a new four-year contract at the end of the 2019-20 season — just two months before he tendered his resignation in September 2020 and joined Egyptian giants Al Ahly.
“I will reserve judgment in the matter and the judgment will be disseminated electronically [at a date chosen by the judge],” Shanaaz on Wednesday afternoon.
Earlier on Wednesday advocate Tembeka Ngcukaitobi, who represents Mosimane and Tlhagale, continued where he left off on Tuesday with his arguments.
This time Ngcukaitobi maintained there were grounds for discrimination against Tlhagale in that Sundowns demanded she pay back some of the agents’ fees when there was no clause in Mosimane’s contract saying she had to.
“There was never a demand for the agents fee to be repaid and that was perfectly consistent with the understanding of the defendant [Tlhagale] that the agreement entailed the release from the contract,” Ngcukaitobi said.
“As late as October 2 [2020], and this is now when a letter from Sundowns’ lawyers arrived. The complaint in that letter is … about miss Tlhagale having been accused of having induced a number of employees to breach their contract to join Al Ahly.
“They are specifically mentioned as Kabelo Rangoaga and Musi Matlaba, who had resigned and went to join Al Ahly. There’s no demand there for the payment of the money [her commission].
“The demand came in November for the repayment of the money. I was dealing with the actual record, things that were exchanged at the time.”
Ngcukaitobi said Tlhagale denied under cross-examination by Maleka that she bargained with Al Ahly when she was brokering the signing of Mosimane’s last contract with Sundowns.
“There was an issue of whether she raised unfairness about the clause [that she must repay Sundowns if the coach leaves before the end of this his four-year contract].
“Again, if you look at the evidence it’s clear she did. At paragraph 29 of the letter [Tlhagale wrote to Sundowns] she says it is inappropriate to expect the agent to return any part of the commission received from the club if the head coach terminates the contract for whatever reason.
“Accordingly, the clause should be deleted in its entirety. Plainly she raised the objection and plainly that objection was overridden by Sundowns.”
Ngcukaitobi then dealt with the comparison of Tlhagale’s contract to that of agents Steven Kapeluschnik of Mosimane’s assistant and successor Rulani Mokwena and Mike Makaab of Manqoba Mngqithi who were Mosimane’s assistants at the time.
“There was never any suggestion put to miss Tlhagale that there is a distinction between these contracts. It was never put to the witness that the justification of the difference between Mosimane’s contract that negotiated by a black woman and Rulani Mokwena’s contract negotiated by a white man is that the amounts were too big.
“If that was the case the witness would have dealt with it. The only issue that was put to her was the structure of the contract and how it was spread out over four years. She was clear that even if it was spread over four years, the payment [commission] is made in advance of the service being rendered and in addition, there is no clawback.
“It is similar to her’s because of its advance payment before the services of the coach is rendered, not of the agent because she has finished her services. Plus, it doesn’t contain the clawback and the clawback was the central area of description.
“The discriminatory aspect here is whether the team ever requires the amount [commission] to be repaid. She says she’s never seen that. Sundowns claimed it was industry practice, but it was clear it is not. Not only that, but it was also not Sundowns practice.”
In reply, Maleka focused on the evidence aired by Ngcukaitobi on Tuesday that suggested Mosimane was constructively dismissed by Sundowns.
“We’re truly surprised by this. They suggested the request by [Sundowns director Dr Rejoice] Simelane for Mosimane to submit pre- and post-match reports suggested that was a new requirement not to be found in the contract of employment.
“The requirement inserted by Dr Simelane to produce pre- and post-match reports is clearly encapsulated in express terms in the contract of employment of the coach.
“I’m going to refer to clauses of the contract of employment. It is clauses 4.1.8 of contract of employment on page 001-17. It says the employee shall submit a written pre- and post-match report on the games played by the first team since the last meeting of the technical committee and preparations for the forthcoming game. The meeting shall analyse and discuss these reports and matters related there to.”
Maleka submitted that the above was clear and part and parcel of Mosimane’s contract at Sundowns.
