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South Africa: Constitutional Court sets aside controversial Waste Act amendments

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Overview

  • Bowmans successfully represented various industry representative bodies as well as certain key manufacturing clients in a direct application to the South African Constitutional Court to challenge an amendment to the definition of ‘waste’ and related provisions in the National Environmental Management Waste Act 59 of 2008 (Waste Act).
  • On 26 June 2023 the Constitutional Court handed down judgement in favour of our clients holding that Parliament’s failure to consult with the public including the applicants in enacting far-reaching changes to the way co-products and by-products of industrial processes are dealt with, is unconstitutional.
  • The amendments that were set aside are the amended definition of ‘waste’, the new definition of ‘commercial value’, the new definition of ‘trade’ and the transitional provisions.

Bowmans successfully represented various industry representative bodies as well as certain key manufacturing clients in a direct application to the Constitutional Court to challenge an amendment to the definition of ‘waste’ and related provisions in the National Environmental Management Waste Act 59 of 2008 (Waste Act).

On 26 June 2023 the Constitutional Court handed down judgement in favour of our clients holding that Parliament’s failure to consult with the public including the applicants – The South African Iron and Steel Industry Association, Fertilizer Association of Southern Africa, Arcelormittal South Africa Ltd, and H Pistorius & Kie (Pty) Ltd – in enacting far-reaching changes to the way co-products and by-products of industrial processes are dealt with, is unconstitutional.

The definition of ‘waste’ and the manner in which co-products and by-products should be regulated has been the subject of much debate between industry and the environmental regulator. This culminated in a pivot, in 2021, in the definition in the latest amendments to the Waste Act in terms of which anything that a producer no longer has a ‘use’ for is considered a waste.  These amendments have now been set aside.

The applicants sought the order declaring that the introduction of amendments to the definition of Waste, in June 2021 after the public participation process for the Waste Act amendments was completed to be unconstitutional and invalid on the basis that the National Assembly and the National Council of Provinces failed to comply with their obligations to facilitate public participation on significant amendments to legislation.

The amendments were signed into law by President Ramaphosa in 2022 but, following the institution of these proceedings in the Constitutional Court, the Minister Forestry, Fisheries and the Environment did not declare a commencement date for the amendments.  The amendments that were set aside by the Constitutional Court are the amended definition of ‘waste’, the new definition of ‘commercial value’, the new definition of ‘trade’ and the transitional provisions.

The judgement vindicated an important constitutional principle that ‘a complete failure to take any steps to involve the public in the material amendment to a Bill cannot be reasonable by any measure’ and that material amendments to Bills trigger Parliament’s duty to conduct further public participation.

Bowmans is pleased to have represented a number of important and leading manufacturing industry representatives before the highest Court in South Africa and congratulates its clients on this outcome.

The judgment is available here. For more information contact Claire Tucker, partner and head of our Public Law and Regulatory Practice.