Judge sees “reasonable prospects” in Mosimane fight against Sundowns’ multi-million rand clawback

JOHANNESBURG – In a decision with far-reaching implications for South African professional sport, South Gauteng High Court on Tuesday granted leave to appeal  judgment that ordered former Mamelodi Sundowns coach Pitso Mosimane and his management company to repay R7.9 million to the club.

Judge S.C. Mia ruled there are “reasonable prospects” a Full Court of the Division could overturn earlier decision, centering appeal on whether standard “clawback” contract clauses align with constitutional principles of fairness and public policy.

The case stems from agreements signed in 2022 when Mosimane joined Sundowns as head coach.

His management company, Moira Tlhagale Sports Marketing and Management (Pty) Ltd, received an upfront commission of approximately R8.6 million for brokering the employment contract –  common practice in football intermediary deals.

The contested clauses stipulated that if Mosimane employment ended early, a pro-rata portion of that commission would have to be repaid.

The relationship terminated after just four months, prompting Sundowns to successfully claim R7,912,905 from both appellants in the court a quo.

In her judgment, Judge Mia applied settled legal framework from Constitutional Court precedents (Barkhuizen and Beadica), which dictates two-stage inquiry into contract enforceability: first, whether a clause is contrary to public policy on its face, and second, whether its enforcement would be contrary to public policy in the specific circumstances.

The appellants argued the lower court “conflated” these stages.

Judge Mia agreed there was merit to this, noting that “another court may find that the respondent’s commercial justification does not justify recovery of remuneration for completed performance.

A critical factor in granting the appeal was the court’s focus on the absence of fault.

The clause was triggered irrespective of why the contract ended, and the intermediary services were fully performed upon signing  employment deal.

“Ms Tlhagale performance was complete,” Judge Mia noted.

“The clauses permit recovery of payment for services already rendered… This creates an incoherence between the intermediary’s performance and remuneration.”

Potentially most significant was the judge engagement with arguments around “structural inequality.”

The appellants contended that Tlhagale, a Black female intermediary and Mosimane’s wife, was subjected to contract terms not imposed on white male intermediaries.

Evidence suggested club officials viewed her primarily as “the coach’s wife.”

Judge Mia found the lower court may not have fully considered “whether structural inequality may have informed the practical operation and effect of the clauses.”

She stated that in South Africa’s constitutional setting, “patterns of race and gender inequality remain relevant to questions of bargaining power, access, and vulnerability,” and are pertinent in assessing substantive fairness.

Concluding, Judge Mia held that the combination of issues—the facial validity of the clauses, their enforcement in a no-fault scenario, and the broader structural context—created not only “reasonable prospects of success” but also “a compelling reason why the appeal should be heard.”

The appeal will now proceed to a Full Court of the South Gauteng High Court Division.

The outcome could set a major precedent, redefining the limits of enforceability for standard sports industry contract terms and anchoring them firmly within South Africa constitutional commitment to substantive equality and justice.