South African Iron and Steel Institure and others v Speaker of the NAtional Assembly and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J |
| Judgment Date | 26 June 2023 |
| Citation | 2023 JDR 2331 (CC) |
| Hearing Date | 21 February 2023 |
| Docket Number | CCT 240/22 |
| Court | Constitutional Court |
Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring):
Introduction
This is an application invoking this Court’s exclusive jurisdiction in terms of section 167(4)(e) of the Constitution. [1] It concerns an alleged failure by Parliament to comply with its constitutional obligations to facilitate public involvement, in breach of sections 59(1)(a) and 72(1)(a) of the Constitution. [2] The constitutional challenge is directed at specific provisions of the National Environmental Management Laws
2023 JDR 2331 p4
Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring)
Amendment Act [3] (NEMLA Act) that amend the definition of “waste” in the National Environmental Management: Waste Act [4] (Waste Act) and insert other related provisions into the Waste Act. The NEMLA Bill was assented to on 24 June 2022 but has not yet been brought into operation.
The central issue in this case is whether material amendments to a Bill without further public involvement passes constitutional muster. There are two aspects that must be addressed: first, whether the amendments are material, and second, whether these amendments triggered the need for further public involvement.
Parties
The first applicant is the South African Iron and Steel Institute (SAISI). SAISI represents the collective interests of the South African primary steel industry. Its members include three carbon steel producers and South Africa’s only stainless-steel producer. One of its members is ArcelorMittal South Africa Limited (AMSA), the third applicant in this matter.
The second applicant is the Fertilizer Association of Southern Africa (FERTASA). FERTASA represents the fertilizer industry in Southern Africa with its members producing, trading, blending and distributing fertilizer products across the region. Through FERTASA, the applicants wish to be heard and to call for public participation in respect of the impugned amendments.
The first respondent is the Speaker of the National Assembly (NA), who is elected in terms of section 52 of the Constitution. The second respondent is the Chairperson of the National Council of Provinces (NCOP), who is elected in terms of section 64 of the Constitution. The third respondent is the Minister of Forestry, Fisheries and the Environment (Minister), who is the national executive responsible for
2023 JDR 2331 p5
Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring)
the implementation of the legislation in issue. The fourth respondent is the President of the Republic of South Africa (President) cited in his official capacity as the head of the national executive. The fifth to the thirteenth respondents are cited in their official capacities as Speakers of the Provincial Legislatures across the country. Only the first and second respondents oppose the application. The Minister, while not opposing, has filed an explanatory affidavit.
Background
The Waste Act is environmental legislation, falling within the ambit of the National Environmental Management Act. The Waste Act establishes a regulatory regime governing the management of waste. The pre-amendment (that is, the current) definition of “waste” in the Waste Act reads:
any substance, material or object, that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or required to be discarded or disposed of, by the holder of that substance, material or object, whether or not such substance, material or object can be re-used, recycled or recovered and includes all wastes as defined in Schedule 3 to this Act;
any other substance, material or object that is not included in Schedule 3 that may be defined as a waste by the Minister by notice in the Gazette, but any waste or portion of waste, referred to in paragraphs (a) and (b) ceases to be waste —
once an application for its re-use, recycling or recovery has been approved or, after such approval, once it is, or has been re-used, recycled or recovered;
where approval is not required, once a waste is, or has been re-used, recycled or recovered; or
where the Minister has, in terms of section 74, exempted any waste or a portion of waste generated by a particular process from the definition of waste; or
where the Minister has, in the prescribed manner, excluded any waste stream or a portion of waste stream for the definition of waste.”
2023 JDR 2331 p6
Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring)
On 16 September 2015, the National Environmental Management Laws Amendment Bill (Bill) was approved by Cabinet. On 13 October 2015, the Minister published a notice in the Government Gazette in which he invited public comment on the Bill. The closing date for public comment was 30 November 2015. This version of the Bill proposed to insert the following new definition of “waste” into the Waste Act (deletions from and additions to the existing definition are shown in strike-out text and underlining respectively):
any substance, material or object, that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or required to be discarded or disposed of, by the holder of that substance, material or object, whether or not such substance, material or object can be re-used, recycled or recovered and includes all waste which emanates from the sources in Schedule 3 to this Act; or
any other substance, material or object that is not included in Schedule 3 that may be defined as a waste by the Minister by notice in the Gazette, but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases to be a waste —
once an application for its reuse, recycling or recovery has been approved and the waste or portion of waste is re-used, recycled or recovered in accordance with the conditions in the approval;
where approval is not required, once a waste is, or has been reused, recycled or recovered;
where the Minister has, in terms of section 74, exempted any waste or a portion of waste generated by a particular process from the definition of waste; or
where the Minister has, in the prescribed manner, excluded any waste stream or a portion of a waste stream from the definition of waste.”
On 23 May 2017, the Bill was introduced in the NA. This version of the Bill contained non-material changes to the definition of “waste” published in October 2015.
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Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring)
Thereafter, the Bill was referred to the Portfolio Committee on Environmental Affairs (Portfolio Committee).
On 24 April 2018, public hearings were held where comments and representations were made by a range of stakeholders. The Portfolio Committee proceeded to prepare a “B” version of the Bill, reflecting its proposed amendments. Again, the proposed amendments did not materially change the scope of “waste” from the previous version. On 8 November 2018, the Portfolio Committee considered and adopted the Bill with amendments. These amendments, which were unrelated to the definition of “waste”, constituted the “D” version of the NEMLA Bill. The “D” version contained the following definition of “waste” (deletions from and additions to the existing definition are again shown in strike-out text and underlining):
any substance, material or object, that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or required to be discarded or disposed of, by the holder of that substance, material or object, whether or not such substance, material or object can be reused, recycled or recovered; or
any other substance, material or object that may be defined as a waste by the Minister by notice in the Gazette, but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases to be a waste —
once an application for its reuse, recycling or recovery has been approved and the waste or portion of waste is re-used, recycled or recovered in accordance with the conditions in the approval;
where approval is not required, once a waste is, or has been reused, recycled or recovered; or
where the Minister has, in the prescribed manner, excluded any waste stream or a portion of a waste stream from the definition of waste”.
2023 JDR 2331 p8
Mathopo J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ, Potterill AJ, Rogers J and Theron J concurring)
On 27 November 2018, the “D” version of the NEMLA Bill was passed by the NA and transmitted to the NCOP for concurrence. A period of inactivity then followed, resulting in the lapse of the NEMLA Bill in terms of the NA Rules in May 2019. The Bill was subsequently revived by the NCOP on 17 October 2019.
On 17 April 2020, the Supreme Court of Appeal handed down judgment in the AMSA. [5] The pre-amendment (that is, existing) definition of waste was considered in detail in this judgment. One of the primary issues was whether the pre-amendment definition of “waste” applied to Basic Oxygen Furnace slag (BOF slag), an important by-product of the steel-making process. [6] BOF slag has several commercial uses, primarily in the road construction and agricultural sectors. In the agricultural sector, it is used to condition soils and is specifically registered as a product in terms of the Fertilizers Farm Feeds, Agricultural Remedies and Stock Remedies Act. [7]
There, AMSA argued that BOF slag, at the point of sale and dispatch to third parties, is not “waste” as it is not “unwanted, rejected, abandoned, discarded...
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