Johannesburg - A mineral-rich North West community has successfully wrestled control of a lucrative stake in mining giant Glencore after accusing its chief of not accounting for millions of rands.
This follows the North West High Court’s ruling in Bakwena-ba-Mogopa’s favour in the battle for the control of its community trust. The Bakwena-ba-Mogopa, land owners in Bethanie, Jericho and Hebron, entered into a pooling and sharing venture with Glencore wherein they hold 26% in Rhovan Mine and also share in the earnings of the operation.
According to non-profit organisation Corruption Watch’s 2018 mining royalties research report, the R575 million B-BBEE agreement relates to the vanadium facility on the community’s land, which is rich with platinum, vanadium and diamonds common extractives.
Bakwena-ba-Mogopa also entered into another money-spinning deal after Impala Platinum acquired African Platinum for R4.2 billion in 2007 and R1bn of the money from the transaction was used to fund African Platinum’s commitment to the Leeuwkop Project and in terms of which their B-BBEE partners became Bakwena-Ba-Mogopa.
The Bakwena Platinum Trust under Ba Mogopa Platinum Investment is the special-purpose vehicle holding the community’s 26% share in the Impala Platinum-African Platinum mine.
In terms of the deal, funds reflecting the community’s 26% ownership of the project would be deposited into the Ba Mogopa Platinum Trust but Corruption Watch established that the trust appeared to be in the sole control of Kgosikgolo Tebogo Motheo Mamogale.
The community ousted Mamogale as the founder and first trustee of the Bakwena-ba-Mogopa Community Trust in the Glencore deal over his failure to appoint other trustees within eight months as provided for in the trust deed.
Mamogale was requested by members of the community to appoint other trustees but this failed to materialise despite correspondence to this effect.
Even attempts to ask the Office of the Master of the High Court, North West to force Mamogale to account for the trust’s activities were unsuccessful.
Mamogale was later removed as a sole trustee after he failed to account to the Master of the High Court on the trust’s activities.
The traditional council nominated – Rebone Morebodi, Motsamai Mogotsi, Motlalepule Mathibedi, Machake Mosane, Daniel Makena and Nicky Lethebe – as the six trustees to replace the sole trustee chief, accusing him of glaring disregard for the provisions of the trust deed and failure to account or respond to the Master of the High Court’s letters, which they found unacceptable.
In court, the community said there are monies to be paid in the trust’s bank account for its upliftment.
Glencore admitted that between 2011 and 2014 over R28 million was paid in the trust’s account but from June 2018 the trust’s share has been paid in the trust account of Werksmans Attorneys after allegations that Mamogale had been dealing with the trust property improperly.
The six trustees argued that 12 years since the trust’s creation, the community has not benefited, which North West High Court Judge Tebogo Djaje found had merit.
The judge said it was clear that the trust was not serving the purpose for which it was created and that the Kgosi was no longer a trustee and there was no challenge to his removal.
"The trust cannot be left without any trustees… This action by the first applicant (Glencore) is an illustration that there were concerns how the money due to the community was being utilised,” she said.
Judge Djaje also found that Glencore was made aware that there were trustees appointed by the Master of the High Court in 2019 and despite various correspondence with the trustees it was only in November 2020 that the company brought its application for a declaratory order that the group is not the trustees of the Bakwena-ba-Mogopa Community Trust.
Glencore also wanted to interdict them from acting as trustees but was unsuccessful in its bid.
On September 30, Judge Djaje directed and ordered Glencore to comply with the six trustees in the execution of their duties as trustees and hand over documents relating to the following agreements: surface lease, pooling and sharing, loan, structure and umbrella, value-added tax, cession and mortgage bond.
Lawrence Mashigo, secretary of Bakwena-Ba-Mogopa traditional council, told the Sunday Independent that the community wanted Mamogale out of all its trusts.
"The trusts should account to the traditional council, of which he as Kgosi is chairperson,” he explained.
Mashigo added: “We want what’s best for the community, he thinks what belongs to the community belongs to him.”
Mamogale on Friday requested a meeting next week when asked about the allegations against him while Glencore did not respond to requests for comment on its next step after failing to have the six trustees ousted.