Just Share NPC, Aeon Investment Management (Pty) Ltd, Fossil Free South Africa v Thungela Resources limited, Companies and Intellectual Property Commission

The application is brought by Just Share NPC, Aeon Investment Management, and Fossil Free South Africa, all shareholders in Thungela Resources Limited, challenging Thungela’s refusal to circulate and table three non-binding shareholder resolutions on climate change and related environmental, social and governance (ESG) issues at its 2023, 2024 and 2025 annual general meetings. The applicants contend that Thungela’s refusal breached sections 65(3) and 62(3)(c) of the Companies Act 71 of 2008, which entitle qualifying shareholders to propose resolutions and require companies to include them in AGM notices. The proposed resolutions concern climate change risks, governance, and Thungela’s response to its contribution to greenhouse gas emissions, particularly given that Thungela is a major producer and exporter of thermal coal. The applicants rely on scientific and policy material referenced in the founding affidavit, including the IPCC Sixth Assessment Report and South Africa’s Climate Change Act, to argue that climate change poses material financial, environmental and human rights risks that are directly relevant to shareholder decision-making. The application emphasises that shareholder resolutions on climate change are a recognised and increasingly important mechanism for corporate accountability and transparency, both globally and in South Africa. It argues that allowing shareholders to debate and vote on climate related resolutions advances responsible corporate citizenship, informs shareholders of climate risks (including physical, transition and liability risks) and enables alignment between corporate conduct and South Africa’s constitutional environmental rights framework, particularly section 24 of the Constitution. The applicants seek declaratory relief confirming that shareholders are legally entitled to propose and vote on climate related and non-binding resolutions, and that Thungela acted unlawfully in refusing to table them. They further argue that the dispute raises constitutional issues, including freedom of expression, freedom of association and the right to an environment not harmful to health or well-being.