Why we’re taking Thungela to court
In our first legal case, Fossil Free South Africa is joining shareholder activist organisation Just Share and asset manager Aeon Investment Management in court action against coal company Thungela Resources.
The outcome could set a precedent for all South African companies’ accountability to their shareholders on issues including climate.
The legal action, filed at the Gauteng High Court, was a last resort: for the past three years, the three organisations that lodged the case have asked Thungela to invite its shareholders to vote on critical climate issues, including whether Thungela should improve its climate-related lobbying disclosures and set scope 3 emission reduction targets.
We did so as shareholders, filing non-binding resolutions with the intention for these to be put to the vote at the company’s next AGM. South African law states that resolutions proposed by shareholders must be tabled for voting unless a court says otherwise. Each year, Thungela refused to circulate our resolutions to shareholders or put them to the vote at its AGMs. This, despite our resolutions complying with all legal requirements. Thungela also said it would reject all our future resolutions.
Shutting down our constitutional rights
Our case asserts that when a board shuts down shareholder debate, it also infringes on key constitutional rights – freedom of expression, freedom of association, and, given Thungela’s heavy environmental and climate impact, the right to an environment not harmful to health or wellbeing.
Shareholder resolutions are one of the few democratic tools investors have to push companies to take climate and other risks seriously. South African investors have been proposing resolutions for years, including at Sasol, FirstRand, Standard Bank, and Exxaro.
Companies such as Nedbank, Investec, Absa and Sasol have also proposed their own climate change-related resolutions. When these resolutions reach a vote, they often pass with remarkable support – far above global averages, which demonstrates that there is strong shareholder appetite for responsible climate governance.
A last resort: approaching the high court
Before litigating, we followed every available avenue. Just Share lodged a complaint with the Companies and Intellectual Property Commission (CIPC). After a year, the CIPC referred the matter for alternative dispute resolution at the Companies Tribunal, a process that did not resolve the dispute.
Only then did we turn to the Gauteng High Court for a declaratory order. We’re asking the Court to confirm that Thungela cannot sidestep shareholder rights.
Thungela has until 15 December 2025 to decide whether it will oppose the application. We’ll keep you updated in the new year. Thank you, as always, for standing with us – for climate justice, and a future free from fossil fuels.
