Thungela Resources Limited shareholders Just Share, Aeon Investment Management and Fossil Free South Africa (the applicants) have instituted litigation in the Gauteng High Court seeking an order that Thungela has breached shareholder rights and its legal obligations by refusing to circulate and table shareholder-proposed resolutions.
In 2023, 2024 and 2025, the applicants exercised their rights as shareholders to file shareholder resolutions with Thungela on climate change-related issues. They did so in accordance with the Companies Act provision that “any two shareholders of a company may propose a resolution concerning any matter in respect of which they are each entitled to exercise voting rights”, and “may require that the resolution be submitted to shareholders for consideration at the next shareholders meeting”. All three resolutions were proposed as non-binding, and all aspects of their filing complied with the relevant provisions of the Companies Act (sections 65(3) and 65(4)) and with Thungela’s memorandum of incorporation.
On all three occasions, Thungela refused to circulate and table these resolutions for a shareholders’ vote at the annual general meeting. The company denies that the applicants have any legal right to propose the resolutions and has indicated that it will refuse all such future resolutions. In other words, despite the right accorded to shareholders to propose resolutions, Thungela’s board of directors has unilaterally determined to refuse to allow the company’s shareholders to consider and vote on these resolutions.
The applicants assert that the Thungela board had no unilateral power to block the proposed resolutions. On the contrary, section 65(5) of the Companies Act is explicit that if the board wishes to object to a proposed shareholder resolution, it is required to seek the leave of a court to bar that resolution from being considered at a shareholders meeting.
The applicants’ case also asserts that this dispute implicates constitutional rights, including the rights to freedom of expression (section 16), and association (section 18). The opportunity to propose, circulate, table and vote on shareholder resolutions allows shareholders to exchange information and ideas both before and during shareholder meetings, and to organise around shared values and goals through the discussion of, and voting on, resolutions. By refusing to table the resolutions, Thungela is denying its shareholders the ability to exercise these constitutional rights.
Furthermore, Thungela’s operations have a significant impact on the environment, including via greenhouse gas emissions that contribute to the climate crisis. This is a matter of significant shareholder concern, and broader public interest, and implicates the section 24 constitutional right to an environment not harmful to health or well-being. Shareholder-proposed resolutions on ESG issues, including climate change, can promote good corporate governance and accountability on environmental issues.
As a result, a binding decision on this far-reaching issue is essential.
Before approaching the High Court, the applicants first tried to resolve this dispute through the Companies and Intellectual Property Commission (CIPC), the entity established to enforce Companies Act compliance.
A year after Just Share lodged its complaint against Thungela with CIPC, that entity issued its report, together with a notice of referral to the Companies Tribunal for alternative dispute resolution. Only when this alternative dispute resolution process also did not resolve the dispute, did the applicants decide to proceed to litigation.
Since 2017, shareholders in South Africa have filed at least 17 resolutions on ESG issues at multiple JSE-listed companies. The applicants have, to different degrees, been involved in filing proposed resolutions at Sasol Limited, FirstRand Group Limited, Standard Bank Group Limited, and Exxaro Resources Limited.
Company boards have also proposed their own resolutions on climate change. These include binding and non-binding resolutions proposed by companies including Nedbank Group Limited, Investec Group Limited, Absa Group Limited, and Sasol.
Where they have gone to a vote, these resolutions have generally passed with sizeable shareholder support, far exceeding the international average. This indicates substantial investor desire to express their views on these issues, and to see action on climate change from the companies in which they are invested. However, where boards refused to table shareholder-proposed resolutions, investors cannot exercise these rights and shareholders are deprived of the opportunity to have these issues discussed.
Given Thungela’s persistent refusal to table the applicants’ resolutions, the litigation argues that appropriate declaratory relief is necessary: to provide proper guidance; to protect the applicants’ rights as set out in the Companies Act and their constitutional rights; and to rectify the harm caused by Thungela’s repeated contraventions of its legal obligations.
This is also a legal question of broader public importance that will provide guidance for similar disputes arising between other shareholders and companies. This clarity should also assist CIPC in its future investigations of similar contraventions.
If Thungela wishes to oppose the application, it is required to file its notice of opposition by 15 December 2025.
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