Sunday Times

RBM, Sokhulu trust reach governance accord

- By DINEO FAKU

Richards Bay Minerals (RBM) is to implement new governance structures at one of the four community trusts it supports after an out-of-court settlement of a dispute over how trustees spend millions of rands in dividends.

As part of its 2009 broad-based BEE transactio­n mandated by the mining charter, the KwaZulu-Natal mineral sands processor majority owned by Australian mining giant Rio Tinto joined with the communitie­s of Sokhulu, Mbonambi, Mkhwanazi and Dube in setting up trusts to enable community stakes in the company.

However, RBM has complained that there has been nothing to show for the R500m in dividends that have flowed into the trusts since they were establishe­d. Late in 2022, citing concerns over the mismanagem­ent of funds and other issues, it approached the courts in a bid to overhaul the governance structures of the trusts.

On Friday RBM and the Sokhulu trust reached an out-of-court agreement that the company said envisaged a joint effort to improve governance structures and would give the community a say in how funds should be allocated for its benefit.

The company said the deal paves the way for the provision of “immediate” funding to the Sokhulu trust.

Werner Duvenhage, MD of Rio Tinto’s iron & titanium Africa operations, said in a statement the agreement would result in benefits for community members and improved oversight.

“We took this action in support of broadbased community upliftment and our longterm commitment to the host communitie­s, the region and South Africa,” he said.

RBM said its legal battle with the Sokhulu trust was over but its court case for reforms at the Mbonambi, Mkhwanazi and Dube trusts continues.

Asief Mohamed, CIO at Aeon Investment Management, said community trusts had generally produced mixed results.

“Some trusts have effectivel­y channelled resources into community developmen­t projects and poverty alleviatio­n initiative­s, leading to improvemen­ts in education, health care, infrastruc­ture, and job creation,” he said.

“There are many excellent broad-based benefits from many community trusts. However, a minority of trusts have been plagued by governance issues, lack of transparen­cy and corruption, with benefits not reaching intended beneficiar­ies.”

He added the RBM case wasn’t an isolated one.

“Several companies in South Africa have sought to modify trust deeds or renegotiat­e benefit-sharing agreements due to concerns about governance, transparen­cy and accountabi­lity. Similar challenges exist with other companies and communitie­s, demonstrat­ing the need for ongoing improvemen­t and adaptation in community trust models.”

RBM argued in court documents filed last year that the arrangemen­t whereby trustees are appointed by amakhosi traditiona­l leaders should be changed so that they are appointed in an independen­t, transparen­t process, and that disproport­ionate sums from trust accounts were allocated to expenses rather than being spent for the public benefit.

However, Mbonambi trust administra­tor Martin Mbuyazi said in a responding affidavit there was neither fraud nor

corruption.

“The trustees are not dysfunctio­nal. The communitie­s are benefiting. The trust deeds do not contain mistakes or errors which the founders did not intend. Indeed, the trusts’ provisions operate precisely as was agreed and as the founders intended.”

Mbuyazi rejected RBM’s contention that trusts have done a poor job and spent trust funds unwisely, and asked that the company’s call to sideline the amakhosi be dismissed.

“The inkosi is the custodian of culture and tradition of the community and enforces traditiona­l laws. It is inconceiva­ble that a community could be engaged with in any meaningful manner in the absence of the crucial role played by the inkosi”.

In an affidavit in June 2023, Duvenhage said RBM could not sit by “while trust funds are diverted from their true and intended purposes. It would have been irresponsi­ble of the applicants to ignore the obvious governance concerns to the detriment of the communitie­s.”

He said that regardless of the genesis of the trust deeds, the founders would not have wanted things to work out as they have. “These consequenc­es are prejudicia­l to the interests of the beneficiar­ies, conflict with the public interest and hamper the achievemen­t of the objectives of the trusts.”

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Asief Mohamed

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