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[2013] ZASCA 70
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Retail Motor Industry Organisation and Another v Minister of Water & Environmental Affairs and Another (145/13) [2013] ZASCA 70; [2013] 3 All SA 435 (SCA); 2014 (3) SA 251 (SCA) (23 May 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 145/13
In
the matter between:
RETAIL
MOTOR INDUSTRY ORGANISATION
...............................
First
Appellant
CIRCUIT
FITMENT CC
................................................................
Second
Appellant
and
MINISTER
OF WATER AND ENVIRONMENTAL
AFFAIRS
.......................................................................................
First
Respondent
RECYCLING
& ECONOMIC DEVELOPMENT
INITIATIVE
OF SOUTH AFRICA NPC
....................................
Second Respondent
Neutral citation:
Retail
Motor Industry Organisation v Minister of Water & Environmental
Affairs
(145/13)
[2013] ZASCA 70
(23 May 2013)
Coram:
Mpati P, Nugent, Tshiqi
JJA & Plasket and Saldulker AJJA
Heard:
08 May 2013
Delivered: 23 May 2013
Summary:
Administrative law –
functus officio
principle –
integrated industry waste tyre management plan subordinate
legislation –
functus officio
principle does not apply –
not necessary for new public participation process when plan that had
been subjected to it republished
– who may draft plan –
not restricted to tyre producers –plan may only regulate
management of waste pneumatic
tyres – references to solid tyres
severable.
ORDER
On appeal from: North Gauteng High
Court, Pretoria
(Bam AJ sitting as court of first instance)
1 Save to the extent set out in
paragraph 2, the appeal is dismissed with costs, including the costs
of two counsel.
2 The order of the court below is
amended to read:
‘
(a) Save to
the extent set out in paragraph (b), the application is dismissed
with costs, including the costs of two counsel.
(b) Every reference to solid tyres in
the second respondent’s Integrated Industry Waste Tyre
Management Plan, approved by
the first respondent and published in
Government Notice 988 in
Government Gazette
35927 of 30
November 2012, is set aside.
JUDGMENT
PLASKET AJA (MPATI P, NUGENT and
TSHIQI JJA and SALDULKER AJA concurring)
[1] This appeal concerns the
regulatory framework for the environmentally compliant management of
tyres that are no longer fit for
their purpose and the powers and
functions of the Minister of Water and Environmental Affairs, the
first respondent (the Minister),
in relation to integrated industry
waste tyre management plans. (Although referred to in the papers as
IIWTMPs, I shall refer to
them simply as plans.) Such plans are of
importance from the perspective of the fundamental right, enjoyed by
everyone, ‘to
an environment that is not harmful to their
health or well-being’ entrenched in s 24(
a
) of the
Constitution and the Minister’s obligations in terms of s 7(2)
of the Constitution to ‘respect, protect, promote
and fulfil’
this and the other rights contained in s 24.
[2] The application that is the
subject of this appeal stems from earlier proceedings. I shall deal
more fully with those proceedings
later in this judgment but a brief
explanation of the background is necessary at this stage.
[3] The National Environmental
Management: Waste Act 59 of 2008 (the Waste Act) empowers the
Minister to approve and publish plans,
drafted and submitted to her
by private persons or bodies, to manage waste in any industry that
generates waste. These plans impose
obligations on participants in
those industries. In this case the Minister approved and published a
plan drafted by the Recycling
and Economic Development Initiative of
South Africa (REDISA), the second respondent. The appellants, the
Retail Motor Industry
Organisation (RMI) and Circuit Fitment CC,
challenged the validity of the approval of the plan in an application
for judicial review.
Pending the outcome of the review, they sought
an interim interdict preventing the implementation of the plan. The
application
for interim relief came before Tuchten J who found that,
prima facie, one item of the plan, which he found to be material, was
invalid. On that basis, he granted the interim interdict.
[4] The Minister then withdrew the
plan and published the same plan minus the offending item. The
appellants contend that she was
not entitled to withdraw the plan
and, because that plan remained in existence until set aside in the
review proceedings, she was
not entitled to publish the second plan.
What is advanced by the appellants is thus the curious contention
that, although they
allege that the initial plan is invalid, it must
remain extant until such time as it is set aside by them, and that
the Minister
may not short-circuit the process by simply withdrawing
an invalid plan and substituting it with a valid plan. Meanwhile, of
course,
the invalid plan will not be capable of implementation in
view of the interim interdict and the process of finalising REDISA’s
plan will grind to a halt. This is clearly the objective that is
sought to be achieved.
[5] In the urgent application with
which this appeal is concerned, RMI and Circuit Fitment CC applied to
the North Gauteng High
Court, Pretoria for orders against the
Minister and REDISA for (a) a declarator that the Minister’s
withdrawal of REDISA’s
plan on 30 November 2012 was a nullity;
(b) that her approval of its amended plan on the same day be reviewed
and set aside; and
(c) that both the Minister and REDISA be
interdicted from implementing the amended plan. Bam AJ dismissed the
application with
costs but later granted the appellants leave to
appeal to this court.
[6] The central issues in this appeal
are: (a) whether, when the Minister withdrew REDISA’s plan, she
had lawful authority
to do so or was
functus officio
; (b) if
the Minister was able to withdraw the first plan, whether the
procedural requirements for the approval of the plan that
replaced it
had been complied with; (c) whether the plan was invalid because it
did not contain certain information; (d) whether,
because REDISA is
not a tyre producer, the Minister could not lawfully approve its
plan; and (e) whether the plan may regulate
the disposal of solid
tyres as well as pneumatic tyres (and the consequences that follow if
it may not). Before dealing with these
issues, it is necessary to say
something of the legislative framework and the facts.
The legislative framework
[7] When the Waste Act came into
operation on 1 July 2009 it repealed much of the Environment
Conservation Act 73 of 1989 but saved
regulations made in terms of
that Act,
1
including the Waste Tyre Regulations
2
.
The Waste Act and the Waste Tyre Regulations are the principal
legislative instruments that are of application in this appeal.
[8] Section 28 of the Waste Act allows
the Minister to initiate the process of drafting plans. Section 28(1)
provides:
‘
Where
any activity results in the generation of waste that affects more
than one province or where such activity is conducted in
more than
one province, the Minister may by written notice require a person, or
by notice in the
Gazette
require
a category of persons or an industry, that generates waste to prepare
and submit an industry waste management plan to the
Minister for
approval.’
Section 28(7)(
a
)
provides, however, that a ‘person, category of persons or
industry contemplated in subsection (1) . . . may elect to prepare
an
industry waste management plan for approval . . . without being
required to do so by the Minister . . .’.
[9] Section 30 deals with the contents
of plans. When the Minister acts in terms of s 28(1), she must also
specify what information
must be included in any plan that is drafted
and submitted to her.
3
That information may include such
matter as the amount of waste that is generated, the measures to be
taken to prevent pollution
or ecological degradation and ‘any
other matter that may be necessary to give effect to the objects of
this Act’.
4
[10] Section 32 deals with the
submission and approval of plans. It provides, to the extent relevant
to this matter:
‘
(1)
The Minister, acting in terms of section 28(1) . . . may on receipt
of an industry waste management plan-
(a)
approve the plan in writing, with any amendments or conditions, and
give directions for the implementation of the plan;
(b)
require additional information to be furnished and a revised plan to
be submitted within timeframes specified by the Minister
. . . for
approval;
(c)
require amendments to be made to the plan within timeframes specified
by the Minister . . .; or
(d)
reject the plan with reasons if it does not comply with the
requirements of a notice in terms of section 28(1) . . . or if a
consultation process in accordance with section 31 was not followed.
(2)
. . .
(3)
An industry waste management plan that has been rejected in terms of
subsection (1)(
d
)
may be amended and resubmitted to the Minister . . .
(4)
On receipt of any information or amendments requested in terms of
subsection (1)(
b
)
or (
c
),
or any amended industry waste management plan resubmitted in terms of
subsection (2) for the first time, the Minister . . . must
reconsider
the plan.
(5)
An approval in terms of subsection (1)(
a
)
must at least specify the period for which the approval is issued,
which period may be extended by the Minister . . .
(6)
Notice must be given in the relevant
Gazette
of
any industry waste management plan that has been prepared in terms of
section 28 and that has been approved by the Minister .
. .
(7)
. . . ’
[11] Prior to approving a plan, the
Minister is required by s 72(1) to ‘follow such consultative
process as may be appropriate
in the circumstances’. She is, in
particular, obliged to consult with other members of the cabinet
whose portfolios may be
affected, MECs in the provinces who may be
affected, and members of the public through a public participation
process, which must
be conducted in accordance with s 73.
[12] The Waste Tyre Regulations impose
certain obligations on tyre producers, tyre dealers and tyre
stockpile owners.
5
Regulation 6(3), for instance,
provides:
‘
A
tyre producer operating on the date of commencement of these
regulations must either-
(a)
prepare and submit to the Minister, an integrated industry waste tyre
management plan, within 60 days of registering in terms
of
subregulation (1) for approval; or
(b)
register with an existing integrated industry waste tyre management
plan approved by the Minister; and
(c)
comply with the integrated industry waste tyre management plan
immediately on receiving the Minister’s approval, or comply
within 60 days with an existing integrated industry waste tyre
management plan approved by the Minister.’
It is clear from reg 6(3) that,
potentially, more than one plan can regulate waste tyre management;
if a tyre producer does not
wish to conduct business in accordance
with an existing plan, it may prepare its own and submit it for
approval.
[13] Part 4 of the regulations deals
with the contents of plans and the process to be followed from the
conceptualisation of a plan
to its promulgation. Regulation 9 states
that a plan that is later to be submitted to the Minister must ‘at
least’
deal with certain listed issues. It must, for instance,
identify the parties to the plan,
6
indicate ‘how the waste
hierarchy will be given effect’,
7
and so on. In terms of reg 11(1), when
the Minister receives a plan, she:
‘
(a)
may require additional information to be furnished and a revised plan
to be submitted within a timeframe indicated by the Minister;
(b)
must publish the integrated industry waste tyre management plan in
the
Government
Gazette
for
a period of 30 days for comment;
(c)
must send comments received to the person responsible for producing
the plan for consideration and incorporation where relevant;
and
(d)
must, after incorporation of any comments, review the revised
integrated industry waste tyre management plan, approve it with
or
without conditions, or reject the integrated industry waste tyre
management plan with reasons and with a timeframe for resubmission.’
In terms of reg 11(4), when the
Minister decides to approve a plan, she must publish a notice to that
effect in the
Government
Gazette
.
The facts
[14] In February 2011, REDISA
submitted a plan that it had drafted to the Minister for her
approval. In April 2011, the South African
Tyre Recycling Process
Corporation NPC (the SATRP) submitted its plan for approval and in
December 2011 RMI did the same.
[15] In November 2011, the REDISA plan
was approved and the SATRP plan was rejected. The RMI plan remained
in limbo for some time.
In April 2012 detailed comments were made on
the RMI plan by the Department and enquiries were made of RMI. We
were informed from
the bar that the RMI plan was eventually submitted
to the Minister two days before the hearing of this appeal.
[16] On 20 January 2012, SATRP brought
an urgent application for an order suspending the implementation of
the REDISA plan. On 26
January 2012, the approval of the REDISA plan
was withdrawn.
8
Neither SATRP or RMI objected to the
withdrawal. REDISA later submitted another plan.
[17] During April 2012, the Department
convened a meeting with role players in the tyre industry, including
RMI and REDISA, to inform
them of progress in relation to the various
plans that had been submitted to it and to ‘confirm that the
process would be
concluded in a fair and reasonable manner in
considering the respective plans that had been submitted’.
[18] By this stage, REDISA’s
draft plan had been published in the
Government
Gazette
for public comment
in terms of reg 11(1)(
b
).
9
It is common cause that a full and
complete public participation process, as envisaged by s 73 of the
Waste Act, was conducted thereafter.
In July 2012, REDISA’s
plan was approved by the Minister and it was published in the
Government Gazette
.
10
(I shall refer to this plan as the
July plan, it having been referred to as such by the parties.)
[19] The approval of the July plan led
to the urgent application that I have referred to above being
launched by RMI and Circuit
Fitment CC against the Minister and
REDISA for an order interdicting the implementation of the plan
pending a review of its approval.
11
Tuchten J granted the interim
interdict on the basis that there were prospects of the reviewing
court finding that the approval
of the plan was unlawful to the
extent that the approved version of the plan contained an item, item
15.1 (dealing with waste reduction
targets), which he found to have
been a material part of the plan and which was not part of the
version that had been published
for public comment.
12
He concluded:
13
‘
If
the Minister accepts that the attempt to bring into effect the Redisa
Plan as approved and published on 23 July 2012 was indeed
invalid on
the ground advanced by the applicants which I have found to carry
prospects of success, then it may be, to put it no
higher, that the
Minister can legitimately withdraw her approval of the Redisa Plan as
approved and published on 23 July 2012 and
apply her mind to the
version of the Plan minus item 15.1 that was put up for comment, with
a view to acting in relation to that
version of the Plan under reg
11(1)(d). I emphasise that I come to no conclusion on the point. The
decision is for the Minister
to take, not the courts.’
[20] The Minister followed the
suggestion made by Tuchten J. On 30 November 2012, she withdrew her
approval of the July plan
14
and then approved the plan without
item 15.1.
15
(This plan is referred to in the
papers as the November plan, and I shall refer to it as such.) It was
this process of withdrawal
and approval that led to the application
that is the subject matter of this appeal.
[21] RMI and Circuit Fitment CC argued
that the Minister acted unlawfully when she withdrew the July plan,
that she consequently
had no power to approve the November plan and
even if she did, its approval was invalid on various grounds. I turn
now to these
issues.
The issues
Was the Minister functus officio in
relation to the July plan?
[22] The first point that was argued
was that the Minister was not able to withdraw the July plan once she
had approved it because
she was
functus
officio
. This argument, it
seems to me, strikes something of a disconsonant note because the
Minister, by withdrawing the July plan, gave
RMI and Circuit Fitment
precisely what they wanted.
[23] In explaining what the
functus
officio
principle means,
Daniel Malan Pretorius says the following:
16
‘
The
functus officio doctrine is one of the mechanisms by means of which
the law gives expression to the principle of finality. According
to
this doctrine, a person who is vested with adjudicative or
decision-making powers may, as a general rule, exercise those powers
only once in relation to the same matter. . . The result is that once
such a decision has been given, it is (subject to any right
of appeal
to a superior body or functionary) final and conclusive. Such a
decision cannot be revoked or varied by the decision-maker.’
[24] The
functus
officio
principle is also
intended to foster certainty and fairness in the administrative
process. It is not absolute in the sense that
it does not apply to
every type of administrative action. Certainty and fairness have to
be balanced against the equally important
practical consideration
that requires the re-assessment of decisions from time to time in
order to achieve efficient and effective
public administration in the
public interest. Lawrence Baxter deals with these competing factors
when he explains the purpose of
the principle:
17
‘
Indeed,
effective daily administration is inconceivable without the
continuous exercise and re-exercise of statutory powers and
the
reversal of decisions previously made. On the other hand, where the
interests of private individuals are affected we are entitled
to rely
upon decisions of public authorities and intolerable uncertainty
would result if these could be reversed at any moment.
Thus when an
administrative official has made a decision which bears directly upon
an individual’s interests, it is said
that the decision-maker
has discharged his office or is
functus
officio
.’
[25] It is not necessary in this
judgment to define the exact boundaries of the
functus
officio principle, save to
say the following: first, the principle applies only to final
decisions;
18
secondly, it usually applies where
rights or benefits have been granted – and thus when it would
be unfair to deprive a person
of an entitlement that has already
vested;
19
thirdly, an administrative
decision-maker may vary or revoke even such a decision if the
empowering legislation authorises him or
her to do so (although such
a decision would be subject to procedural fairness having been
observed and any other conditions);
20
fourthly, the
functus
officio
principle does not
apply to the amendment or repeal of subordinate legislation.
21
[26] The principle does not apply to
subordinate legislation for two reasons. First, in terms of the
common law, legislation may
be amended by the body empowered to make
it.
22
Secondly, the Interpretation Act 33 of
1957 provides expressly for a deviation from the principle in the
case of subordinate legislation.
Section 10(3) states:
‘
Where
a law confers a power to make rules, regulations or by-laws, the
power shall, unless the contrary intention appears, be construed
as
including a power exercisable in like manner and subject to the like
consent and conditions (if any) to rescind, revoke, amend
or vary the
rules, regulations or by-laws.’
[27] In this instance, the empowering
legislation does not authorise the Minister to revoke an approval of
a plan once granted,
although reg 12 provides for the revision of
plans every five years, or sooner if and when the need arises for
revision. If one
considers the contents of the plan, it is clear that
it does not seek to vest rights or benefits in those who subscribe to
it.
Indeed, the opposite is true: it imposes obligations on them. So,
for instance, item 4 of the plan requires subscribers to ‘provide
to the external accounting company a monthly declaration of their
tyre production (including rejects), imports and exports’
and
to provide ‘annual audit certificates confirming their
declarations of masses of tyres imported and/or manufactured,
and
permit spot check audits to be conducted by REDISA’s auditors’;
and item 17 requires subscribers to pay a waste
tyre management fee.
23
This is an indication that the
functus
officio
principle may not
be of application.
[28] I turn now to consider the nature
of the approved plan, it having been argued on behalf of REDISA that
it is subordinate legislation
and thus excluded from the
functus
officio
principle by s
10(3) of the Interpretation Act. It needs to be emphasised that the
purpose of this exercise is to determine whether
the
plan
is an instrument of subordinate
legislation, rather than the Minister’s
withdrawal
of approval of the plan
.
[29] Hoexter has set out a number of
characteristics of subordinate legislation that distinguish it from
other species of administrative
action. These are: (a) legislative
action is general in its application, applying impersonally to
society as a whole or a groups
within it, rather than to individuals;
(b) legislation is concerned with the implementation of policies,
rather than the resolution
of individual disputes; (c) legislation
tends to operate prospectively and creates legal consequences for the
period after it comes
into force; (d) legislation is usually intended
to remain in force indefinitely (but may be designed to lapse after a
prescribed
period); (e) legislation requires promulgation –
usually publication in the
Government
Gazette
–
before it
acquires the force of law; and (f) often legislation will require
further administrative action in order to make it effective,
such as
the enforcement of a sanction.
24
[30] The plan contains many of these
features. It is general in its application, imposing obligations on
all who subscribe to it
and all those who will, once it is given
effect, enter into contractual relationships with REDISA. It creates
a system by which
waste tyres will be managed over a period of time.
It is concerned with the implementation of that system rather than
aspiration.
It operates prospectively. It has an indefinite life-span
but, according to reg 12(1), it must be revised and re-submitted to
the
Minister every five years (or sooner if needs be). In terms of
reg 11(4), an approved plan must be published in the
Government
Gazette
. It contains the
framework within which action will be taken to deal with waste tyres
in an environmentally acceptable way. In
my view, therefore, the plan
is an instrument of subordinate legislation.
[31] The way in which the plan has
been made requires brief comment. Usually legislative instruments are
drafted by drafters who
work for the legislative functionary
concerned. That, as this case shows, is not the only way in which
subordinate legislation
can come into being. In this case, the
drafting of plans has, in effect, been out-sourced to private
individuals. Once the efforts
of the drafter of a plan meet with the
approval of the Minister, she gives legal effect to the plan by
approving it and publishing
it in the
Government
Gazette
. This is an example
of what Hoexter calls negotiated rulemaking.
25
[32] My conclusion is that the July
plan is legislative in nature. While it cannot be described as a set
of regulations or a by-law,
it can be described as rules for purposes
of s 10(3) of the Interpretation Act. The Minister was empowered by
the Waste Act and
the Waste Tyre Regulations to approve the July
plan. A power to make rules was therefore conferred on her. She
exercised that power
when she approved and published the July plan.
She was also empowered by s 10(3) to rescind the plan. That being so,
the
functus officio
principle has no
application and did not prevent her from withdrawing the July plan.
Procedural propriety and the
November plan
[33] It was argued on behalf of the
appellants that if the Minister was not
functus
officio
in relation to the
July plan, her approval of the November plan was invalid because no
public participation process was followed
prior to its approval and
publication.
[34] It is common cause that prior to
the July plan being approved an unimpeachable public participation
process was conducted in
respect of a plan that contained everything
that the July plan contained except for item 15.1. That item was
never subjected to
the public participation process and so, when it
was added to the plan, it was the basis for the interim interdict
being granted.
The November plan was the July plan minus item 15.1.
It was thus the exact same plan that had been the subject of the
public participation
process.
[35] I can see no point in commencing
the public participation process again. It would serve no useful
purpose. The Minister did
not act in a procedurally unfair manner
when she approved and published the November plan without the public
participation process
being run again.
The content of the November plan
[36] The point was taken that the
subject matter of item 15.1 – targets – had to form part
of the plan and, if they
were not included, the plan would be
invalid. I have my doubts whether the failure to include an item in a
plan would mean that
the whole plan would be invalid but the argument
flounders on two more fundamental grounds.
[37] The first is
factual. Every requirement mentioned in reg 9(1) of the Waste Tyre
Regulations is dealt with in the November plan,
including an ‘annual
projection of the quantities and types of tyres that are manufactured
or imported that will become waste
tyres and will be managed through
the integrated industry waste tyre management plan’
26
and the ‘timeframes
in which the different types of tyres will be managed’.
27
These are the
requirements that, it was argued, were not included in the plan. The
argument is not factually correct. Item 5, headed
‘Projected
volumes’, deals with the requirements of reg 9(1)(
b
)
and item 15, headed ‘Implementation Target Dates and
Timeframe’, deals with the requirements of reg 9(1)(
j
).
[38] Secondly, the argument is based
upon a misunderstanding of the purpose of reg 9(1) and its
relationship with s 32 of the Waste
Act and reg 11. Regulation 9(1)
informs the drafter of a plan what he or she must include in the
draft for submission to the Minister.
It is intended to direct the
attention of the drafter to what, most likely, needs to be in the
plan, and to ensure that the Minister
does not have to refer the plan
back for attention to be given to matters that should have been
considered.
[39] Section 32 empowers the Minister
to approve a plan, ask for additional information, require amendments
to a plan or reject
a plan, and reg 11 mirrors these powers in
respect of waste tyres specifically. Together they vest a broad
discretion in the Minister
to fashion a plan that is suitable and
appropriate. In so doing, she may take the view that certain
requirements of reg 9(1) that
have been dealt with in a plan are
irrelevant, serve no purpose or are counter-productive. A plan that,
after the Minister’s
amendments have been made, does not deal
with an aspect that is specified in reg 9(1) because, in the
Minister’s view, it
is not relevant to that plan, cannot be
assailed on that account.
Who may submit a plan?
[40] It was argued on behalf of the
appellants that it is only tyre producers who may submit plans to the
Minister, that REDISA
is not a tyre producer and that consequently
the Minister was not able validly to approve either of its plans. It
is common cause
that REDISA is not a tyre producer. It is an
independent non-profit company formed to administer a plan. A
significant number of
tyre producers had subscribed to its plan prior
to its submission to the Minister for her approval.
[41] Regulations 6(3) and (4) of the
Waste Tyre Regulations were said to be the legal basis for this
argument. Regulation 6(3) provides
that a tyre producer operating at
the time that the regulations came into force had to either prepare a
plan for approval by the
Minister or register with an existing plan
and comply with the plan concerned. Regulation 6(4) provides that a
tyre producer commencing
business after the regulations had come into
force ‘shall not begin operations without an integrated
industry waste tyre
management plan approved by the Minister or
without providing written confirmation to the Minister of acceptance
into an existing
integrated industry waste tyre management plan
approved by the Minister’.
[42] These
regulations do no more than impose obligations on tyre producers to
either formulate their own plan for approval or to
subscribe to an
existing plan. They say nothing about who may draft plans for
submission to the Minister. That is dealt with by
s 28 of the Waste
Act. Section 28(1) provides that where waste is generated in an
industry that operates in more than one province,
‘the Minister
may by written notice require a person, or by notice in the
Gazette
require a category
of persons or an industry, that generates waste to prepare and submit
an industry waste management plan to the
Minister for approval’.
Section 28(7)(
a
)
provides, however, that the person, category of persons or industry
referred to in s 28(1) may elect to prepare a plan for submission
to
the Minister ‘without being required to do so by the Minister’.
[43] Section 28
contemplates that where waste is generated in an industry, plans to
manage it must be formulated, approved and applied
in order to deal
with the environmental harm that has been identified. Understandably,
the Waste Act is more concerned with this
than with who drafts plans.
In other words, the identity of the drafter of a plan is not a
jurisdictional fact for the valid approval
of the plan. The import of
ss 28(1) and (7)(
a
)
is that any person, whether they are connected with an industry that
generates waste or not, may draft a plan for the management
of waste
in that industry and the Minister may, in her discretion, approve
that plan. There is, accordingly, no merit in the argument
that as
REDISA is not a tyre producer the Minister could not have validly
approved either of its plans.
The types of tyres
[44] The final argument that was
raised on behalf of the appellants is that both the July and November
plans deal with pneumatic
and solid tyres, but it is only pneumatic
tyres that may be regulated by a plan. The plans are, so the argument
proceeds, invalid
because of the inclusion of solid tyres.
[45] Regulation 1
of the Waste Tyre Regulations defines a tyre to mean ‘a
continuous pneumatic covering made of natural rubber
or synthetic
rubber or a combination of natural and synthetic rubber encircling a
wheel, whether new, used or retreaded’.
This definition
contemplates only tyres that are capable of being filled with air in
order for them to suit their purpose.
28
Solid tyres are not
envisaged by the definition. The regulations thus contemplate plans
for the management of waste pneumatic tyres
only, and not solid
tyres. Whether that is a sensible distinction to draw is not the
subject matter of judicial review.
29
[46] The fact that
the November plan deals with solid tyres as well as pneumatic tyres
does not necessarily mean that the entire
plan must be set aside. If
the bad can be severed from the good, the bad can be set aside and
the good left intact. The correct
approach to the question of whether
the bad in an instrument of subordinate legislation can be severed
from the good was set out
as follows by Centlivres CJ in
Johannesburg
City Council v Chesterfield House (Pty) Ltd
:
30
‘
The
rule, that I deduce from
Reloomal's
case
is that where it is possible to separate the good from the bad in a
Statute and the good is not dependent on the bad, then
that part of
the Statute which is good must be given effect to, provided that what
remains carries out the main object of the Statute.
In
Arderne's
case
the main object of the Ordinance was to raise revenue by means of
taxation and the good could easily be separated from the
bad. The
main object of the Ordinance was, therefore, not defeated by holding
that the Ordinance, shorn of its bad parts, was valid.
Where,
however, the task of separating the bad from the good is of such
complication that it is impracticable to do so, the whole
Statute
must be declared
ultra
vires
.
In such a case it naturally follows that it is impossible to presume
that the legislature intended to pass the Statute in what
may prove
to be a highly truncated form: this is a result of applying the rule
I have suggested and is in itself not a test.’
[47] Severance is possible in this
case. It is possible, textually, to separate the references to solid
tyres from references to
tyres as defined in the Waste Tyre
Regulations. The references to tyres as defined are not dependant in
any manner on the references
to solid tyres, because solid tyres are
always referred to expressly and separately from tyres as defined. It
is a simple matter
to order that any reference to solid tyres in the
November plan be set aside. This does no violence to the objects of
the plan.
Indeed, all that it does is to leave the remainder of the
plan in place and consistent with the Waste Tyre Regulations.
Conclusion and order
[48] The appellants have failed in
respect of all of the grounds upon which the appeal was argued except
for their partial success
in relation to the inclusion in the
November plan of solid tyres. The references to solid tyres are
severable. They have succeeded
to such a limited extent that,
although the order of the court below must be amended to reflect the
partial success they have achieved,
the appeal must nonetheless be
dismissed. It cannot be said that they have achieved substantial
success and so are not entitled
to costs, either in this court or in
the court below. The respondents, on the other hand, have achieved
substantial success and
the costs order in both courts must reflect
that fact.
[49] I make the following order:
1 Save to the extent set out in
paragraph 2, the appeal is dismissed with costs, including the costs
of two counsel.
2 The order of the court below is
amended to read:
‘
(a) Save to
the extent set out in paragraph (b), the application is dismissed
with costs, including the costs of two counsel.
(b) Every reference to solid tyres in
the second respondent’s Integrated Industry Waste Tyre
Management Plan, approved by
the first respondent and published in
Government Notice 988 in
Government Gazette
35927 of 30
November 2012, is set aside.
___________________
C Plasket
Acting Judge of Appeal
APPEARANCES:
For the First Appellant: L W de Koning
SC (with him B C Stoop)
Instructed by:
Barnard Inc., Pretoria
McIntyre van der Post, Bloemfonein
For the First Respondent: S Joubert SC
(with him P A Swanepoel)
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
For the Second Respondent: D
Unterhalter SC (with him A Louw SC)
Instructed by:
Cliffe Dekker Hofmeyer Inc c/o
Friedland Hart, Pretoria
Claude Reid Inc., Bloemfontein
1
Waste
Act, s 80(2).
2
Government
Notice 149,
Government
Gazette
31901
of 13 February 2009.
3
Waste
Act, s 30(1).
4
Waste
Act, s 30(2).
5
Regulations
6, 7 and 8.
6
Regulation
9(1)(
a
).
7
Regulation
9(1)(
c
).
8
Government
Notice 559,
Government
Gazette
34974
of 26 January 2012.
9
Government
Notice 337,
Government
Gazette
35147
of 17 April 2012.
10
Government
Notice 564,
Government
Gazette
35534
of 23 July 2012.
11
Retail
Motor Organisation & another v Minister of Water and
Environmental Affairs & another
NGP
12 November 2012 (case no. 51148/12) unreported.
12
Paras
37, 51.
13
Para
59.
14
Government
Notice 987,
Government
Gazette
35926
of 30 November 2012.
15
Government
Notice 988,
Government
Gazette
35927
of 30 November 2012.
16
Daniel
Malan
Pretorius
‘The Origins of the
Functus
Officio
Doctrine,
with Specific Reference to its Application in Administrative Law’
(2005) 122
SALJ
832
at 832. See too V G Hiemstra and H L Gonin
Trilingual
Legal Dictionary
3
ed (1992) who define
functus
officio
to
mean ‘no longer in office (officiating); having discharged his
office’.
17
Lawrence
Baxter
Administrative
Law
(1984)
at 372 (Baxter). See too Cora Hoexter
Administrative
Law in South Africa
2
ed (2012) at 277 (Hoexter).
18
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) para 44; Baxter at 375; Hoexter at 278.
19
Baxter
at 373-375. See for example
Cape
Coast Exploration Ltd v Scholtz & another
1933
AD 56
at 65.
20
Baxter
at 376-378; Hoexter at 278-279; L A Rose-Innes
Judicial
Review of Administrative Tribunals in South Africa
(1963)
at 99.
21
Baxter
at 372 says: ‘One can understand the necessity for rules of
general application to be changed from time to time,
as changing
policies and circumstances require.’ See too Hoexter at 276.
22
Hoexter
at 276.
23
See
too items 8, 9, 12, 13, 24 and 26 which all impose obligations of
one form or another on subscribers and other persons.
24
Hoexter
at 52-53; Baxter at 349-351.
25
Hoexter
at 86-87.
26
Regulation
9(1)(
b
).
27
Regulation
9(1)(
j
).
Note that two reg 9(1)(
j
)s
appear in the regulations. The first, the sub-regulation quoted,
should, in fact, be reg 9(1)(
i
).
28
The
Concise
Oxford English Dictionary
defines
the word pneumatic to mean ‘containing or operated by air or
gas under pressure’.
29
Sinovich
v Hercules Municipal Council
1946
AD 783
at 802-803: ‘The law does not protect the subject
against the merely foolish exercise of a discretion by an official,
however
much the subject suffers thereby. But the law does protect
the subject against stupid by-laws or regulations, however well
intended,
if their effect is sufficiently outrageous.’
30
Johannesburg
City Council v Chesterfield House (Pty) Ltd
1952
(3) SA 809
(A) at 822D-F. See too
S
v Prefabricated Housing Corporation (Pty) Ltd & another
1974 (1) SA 535
(A) at 539C-F;
S
v O’Malley
1976
(1) SA 469
(N) at 477E-G.