Glencore Operations South Africa (Pty) Ltd and Others v Master of the High Court, Northwest and Others

In 2009 Glencore Operations South Africa (Pty) Ltd and the Bakwena‑ba‑Mogopa community concluded agreements granting the community a participation interest in the Rhovan Mine. A trust, the Bakwena‑ba‑Mogopa Trust (IT 33/2009), was established as a special‑purpose vehicle to hold this interest. The trust deed designated the Kgosi as founder and permanent trustee and prescribed a detailed structure for appointing additional trustees. Due to internal conflict within the community, trustees were never appointed in accordance with the deed. In 2018 the Master of the High Court removed the Kgosi as trustee and authorised six individuals, nominated by a faction of the Traditional Council, to act as trustees, despite their appointment not complying with the trust deed. Glencore and others challenged the validity of these appointments and the Master’s authorisation. The respondents counter‑applied for amendments to the trust deed and for Glencore’s cooperation. The High Court dismissed the challenge and granted the counter‑application. Glencore and others appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court order was set aside and replaced with an order declaring that none of the second to seventh respondents were trustees of the Bakwena‑ba‑Mogopa Trust, declaring the Master’s authorisation invalid and setting it aside, dismissing the counter‑application, and ordering the relevant respondents and the Traditional Council to pay the costs of the application, counter‑application, and appeal.

The judgment reaffirms strict compliance with trust deeds in the appointment of trustees and clarifies the limited scope of the Master’s powers under s 6(1) of the Trust Property Control Act. It underscores that unlawfully appointed trustees cannot exercise fiduciary powers, seek amendments to trust deeds, or rely on acquiescence to cure invalidity. The case reinforces leading authority such as Parker and Gowar on trustee appointment, authority, and locus standi, and is significant for governance of community and traditional‑authority trusts.