22/11/2024
Feedback Communication Regarding the Supreme Court of Appeal Proceedings on 22 November 2024
in attendance: BBM-CDF, BBM-YIA, Kgosi (Motheo), Mahamutasa & Phenyo
Dumelang Bagopa,
We would like to provide an update on the Supreme Court of Appeal (SCA) hearing held today, 22 November 2024, regarding the ongoing legal matter involving Glencore Rhovan, the Bakwena Ba Mogopa Community Trust, and its trustees.
Background
This case stems from disputes over the legitimacy and appointment of trustees for the Bakwena Ba Mogopa Community Trust. The Mafikeng High Court previously ruled in favor of the 2ndโ7th respondents, affirming them as trustees. Glencore and others challenged this ruling, raising concerns about the legality of their appointment and the governance of the Trust.
Key Issues Raised in Court
Trust Deed and Governance:
Glencore questioned amendments made to the Trust Deed, arguing they lacked a proper legal basis.
It was emphasized that the Traditional Councilโs (TC) term expired in 2022, rendering its actions invalid.
There was a discussion about whether leadership gaps can be left when terms of office expire, referencing the Pilane case law.
Appointment of Trustees:
Advocates argued that trustees must be appointed according to the Trust Deed, by the judiciary, or by the Master of the High Court.
It was noted that past appointments lacked proper consultation with the Council of Headmen or the morafe (community).
Role of Kgosi:
Debate arose about the Kgosiโs involvement, with allegations of dishonorable conduct, including a claim that he mismanaged or misappropriated R100 million.
Questions were raised about the Kgosiโs abandonment of the Trust and TC for an extended period.
Glencore's Conduct:
Glencore was criticized for allegedly failing to intervene effectively when governance issues surfaced.
TCโs Legitimacy:
The TC argued that, despite its expired term, it held a kgothakgothe (community gathering) in 2019, where the morafe empowered it to appoint new trustees.
This claim was challenged, with the court noting inconsistencies in the TC's functionality during this period.
Relief Sought
Glencore: Requested that the court deregularize the current trusteeship and hold TC members personally liable for costs.
Traditional Council: Maintains that its actions were legitimate and that it guarantees the leadership of the community.
Conclusion
The court deliberated extensively on the governance challenges facing the Trust, the legal and procedural irregularities surrounding the trustees' appointments, and the broader implications for community leadership. The final ruling will have significant implications for the Trust's future and the governance of community resources.
We encourage the community to remain patient as we await the SCAโs judgment. This matter is critical to ensuring that the Bakwena Ba Mogopa Community Trust operates lawfully and in the best interest of the community.