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2026
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[2026] ZAGPJHC 401
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Moira Tlhagale Sports Marketing and Management (Pty) Ltd and Another v Mamelodi Sundowns Football Club (Pty) Ltd (25792/2021) [2026] ZAGPJHC 401 (14 April 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 25792/2021
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In the matter between:
MOIRA TLHAGALE SPORTS
MARKETING AND
MANAGEMENT
(PTY) LTD
First
Appellant
PITSO
JOHNNY HAMILTON MOSIMANE
Second
Appellant
AND
MAMELODI SUNDOWNS
FOOTBALL
CLUB
(PTY) LTD
Respondent
JUDGMENT
Mia, J
Introduction
[1]
This is an appeal against the judgment of
the court a quo handed own on 19 August 2025, in which the appellants
were ordered, jointly
and severally, to pay the respondent the sum of
R7 912 905, together with interest and costs.
[2]
The
test for leave to appeal, in terms of section 17(1)(a)(i) and (ii) of
the Superior Courts Act is well established. The appellant
must
establish that that (i) there are reasonable prospects of success on
appeal
[1]
or (ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments regarding the issues
under consideration.
[2]
[3]
The appeal concerns the enforceability of
“clawback clauses” contained in an employment agreement
and a related intermediary
agreement. The central question is whether
those clauses are consistent with public policy as informed by the
Constitution. A further
ground of appeal was that the court a quo
lacked jurisdiction.
Facts
[4]
The material facts are common cause. The
respondent employed the second appellant as head coach for a fixed
period of 48 months.
An intermediary agreement was concluded with the
first appellant, in terms of which a commission of approximately R8.6
million
was paid upfront. The agreements provided for repayment of a
pro rata portion of that commission in the event of early
termination.
The employment relationship terminated after
approximately four months. The respondent thereafter claimed
repayment of R7.9 million.
Summary of grounds of
appeal
[5]
The appellants contend that the court a quo
materially misdirected itself.
[6]
In summary, it is submitted that the court:
a)
misconstrued the two-stage inquiry into
reasonableness by failing to assess whether the clauses were contrary
to public policy on
their face.
b)
failed to engage with the substance of the
appellants’ case that the clauses are punitive,
disproportionate, and operate irrespective
of fault.
c)
applied incorrect principles by treating
the clauses as analogous to breach-based penalty provisions.
d)
failed properly to consider material
evidence relating to the circumstances of termination.
e)
misconceived the constitutional dimension
of the case, including the relevance of equality considerations; and
f)
failed to give adequate reasons on decisive
issues.
g)
the court lacked jurisdiction.
[7]
The applicants contend that the court erred
by misconstruing the nature of the inquiry into the reasonableness of
the impugned “clawback
clauses.” Further, that the court
erred in that it failed to find that the clawback clauses were so
unreasonable on their
face as to be contrary to public policy, which
is the first stage of the reasonableness inquiry. The effect was that
the Mamelodi
Sundowns Football Club (Pty) Ltd (“Club”)
was able to benefit from the enforcement of the clause by effectively
charging
Mr Mosimane, its own employee, up to R8 623 260,00 for early
termination and in doing so unfairly benefitting from the termination
of employment. In essence, resulting in Mr Mosimane’s labour
being rendered for free. In addition, it rendered the compensation
to
Moira Thlagale Sports Management and Marketing (“TSM”)
for services rendered conditional on events outside of its
control as
there was no work which TSM could have done after the conclusion of
Mr Mosimane’s contract to keep Mr Mosimane
in the position. It
was submitted that the punitive, unfair, illogical and irrational
nature of the clauses, could never accord
with public policy under
the Constitution, and this was not considered by the court a quo.
Jurisdiction
[8]
The position that the agreement was not
employment related or covered in any of the sub articles in 23.2, is
not capable of any
other interpretation. In addition, the forum the
appellants sought to refer the matter to, was not capable of
deliberating on the
constitutional issues raised which invoke this
court’s inherent jurisdiction. On this aspect another court
will not reasonably
come to a different conclusion.
[9]
On
the remainder of the grounds of appeal in relation to consideration
of the enforceability of clawback clauses, the applicable
principles
are settled. In
Barkhuizen
v Napier
[3]
and
Beadica
231 CC v Trustees, Oregon Trust,
[4]
the Constitutional Court confirmed that public policy, rooted in the
Constitution, governs the enforceability of contractual terms.
The
inquiry proceeds in two stages:
9.1.
whether the clause is contrary to public
policy on its face; and
9.2.
whether its enforcement would be contrary
to public policy in the circumstances.
On this two-stage
enquiry, the appellants contend that the court a quo erred in that it
conflated the two-stage enquiry.
[10]
That
inquiry requires a balancing of contractual autonomy with fairness,
reasonableness, and justice.
[5]
The nature of the
clauses
[11]
The clawback clauses require repayment of
commission already earned and paid. They are triggered irrespective
of fault and operate
even where the agent has fully performed. It is
common cause that the first appellant’s performance was
complete upon conclusion
of the employment contract.
First stage: facial
validity
[12]
The clauses render remuneration contingent
upon the continuation of the employment relationship between Mamelodi
Sundowns and Mr
Mosimane. They permit recovery of payment for
services already rendered by TSM. This creates an incoherence between
the intermediary,
TSM’s performance and remuneration.
Notwithstanding, the agreement was signed by the intermediary, it is
possible that another
court may find that the respondent’s
commercial justification does not justify recovery of remuneration
for completed performance
and or that the clauses operate, in
substance, as a retrospective financial burden not linked to breach.
Second stage:
enforcement
[13]
The clauses must be assessed contextually.
The first appellant did not breach the agreement. As an agent,
performance was complete.
The triggering event was outside the
intermediary’s control, she said as much that Mr Mosimane’s
decision to leave
was after much deliberation. Another court may find
that that the financial consequences are severe in the absence of her
breach
and despite the respondent enforcing a clause of the agreement
signed by the appellants. This in effect deprived the first appellant
of remuneration for services she rendered.
Structural inequality
and context
[14]
The
appellants further contend that the position of the first appellant
must be understood within its broader context. I understand
this to
be the broader socio-economic context. The first appellant is
represented by a black female intermediary operating
within a
historically male-dominated and commercially powerful professional
football environment. The clauses themselves are facially
neutral.
The enquiry into fairness under
Beadica
is however not confined to formal equality.
[6]
This aspect was not fully considered. It required consideration of
the broader context within which the agreement was concluded.
[15]
In South Africa’s constitutional
setting, patterns of race and gender inequality remain relevant to
questions of bargaining
power, access, and vulnerability. These
considerations do not, without more, invalidate contractual terms.
However, they are relevant
in assessing whether a clause is
substantively unreasonable or unfair in its operation. In the context
where the evidence indicated
that the director of TSM was a black
female and was the wife of the second appellant this it was argued
resulted Mamelodi Sundowns
treating her differently to the manner it
treated other intermediaries. Dr Simelane’s evidence was that
they recognised Ms
Thlagale as “the coach’s wife”.
The issue can possibly be argued as viewing the issue of equality
primarily through
a formal lens, focusing on the absence of explicit
discrimination. This raises the question whether the court a quo
engaged with
whether structural inequality may have informed the
practical operation and effect of the clauses. This is not apparent
from my
judgment.
[16]
In the present matter, the clawback
provisions impose a significant financial burden disconnected from
fault and operate to deprive
the first appellant of remuneration for
services already rendered. This was not the case with white male
intermediaries. Their
contracts did not have the same clauses. The
structural position of the first appellant is a relevant contextual
factor in assessing
whether enforcement accords with the
constitutional conception of public policy.
[17]
When these considerations are taken
together, there is a reasonable possibility that another court may
come to a finding other than
that of the court a quo and possibly
find that the effect of the clause is substantively unfair and that
it imposes a disproportionate
financial burden on the first
appellant. When viewed in the full context, including the structural
setting in which the agreements
were concluded, there is a reasonable
argument to be made that enforcement would not accord with fairness
and justice. Despite
the first appellant’s contractual
autonomy, another court may conclude in the context of the above
circumstances even where
the contract was freely entered into that
enforcement produces an unjust outcome.
[18]
Having regard to the standard the applicant
must satisfy to succeed I am persuaded that there are reasonable
prospects of success
that another court will come to a different
conclusion. In view of the structural inequality consideration rooted
in the constitutional
enquiry and public policy there is a compelling
reason why the appeal should be heard.
[19]
In the result, I grant the following order:
1.
The application for leave to appeal is
granted to a Full Court of this Division with costs to be costs in
the appeal.
S C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Appearances:
On behalf of the
appellants
Adv. T Ngcukaitobi
Adv C
Chanza
Adv T
Dewey
Instructed
by
Mabuza Attorneys
On behalf of the
respondents
Adv V Maleka SC
Adv T
Seroto
Instructed
by
Bowman Gillfillan Inc
Date of
hearing
14 January 2026
Date of
judgment
14 April 2026
[1]
section
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
[2]
Id
section 17(1)(a)(ii).
[3]
CCT72/05)
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) para
[29] – [30].
[4]
(CCT109/19)
[2020] ZACC 13
;
2020 (5) SA 247
(CC);
2020 (9) BCLR 1098
(CC) para
[16].
[5]
Barkhuizen
v Napier
CCT72/05)
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) para
[12],[70] and [87].
[6]
Beadica
231 CC v Trustees, Oregon Trust
op
cit n 2 at paras [81] – [82] and [99] – [101].