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[2012] ZAGPPHC 202
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South African Tyre Recycling Process Company NPC and Another v Minister of Water and Environmental Affairs and Others (50556/12) [2012] ZAGPPHC 202 (17 September 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 50556/12
DATE:17/09/2012
In
the matter between:-
SOUTH
AFRICAN TYRE RECYCLING PROCESS
COMPANY
NPC
.......................................................................................................
First
Applicant
BRIDGESTONE
SOUTH AFRICA (PTY)
LTD
......................................................
Second
Applicant
and
MINISTEROF
WATER AND ENVIRONMENTAL AFFAIRS
...............................
First
Respondent
DIRECTOR-GENERAL:DEPARTMENT
OF
ENVIRONMENTAL
AFFAIRS
............................................................................
Second
Respondent
RYCYCLING
AND ECONOMIC DEVELOPMENT
INITIATIVE
OF SOUTH AFRICA
NPC
...............................................................
Third
Respondent
JUDGMENT
Van
der Byl, AJ:-Introduction
[1]
In terms of the regulations published under section 24B of the
Environment Conservation Act, 1989 (Act 73 of 1989), by Government
Notice R.149 of 13 February 2009 {"the regulations")
provision is made for the management of waste tyres.
[2]
The regulations were promulgated on 13 February 2009 and came into
operation on 30 June 2009 (Government Notice R.520 of 3 May
2009).
The
regulations relevant to this application
[3]
In terms of these regulations a tyre producer, as defined in
regulation 1, is required to register with the Minister (the First
Respondent), in the case of a producer operating on 30 June 2009,
within 30 days as from 30 June 2009 (ie , more or less on 29
July
2009) and, in the case of a producer commencing business after 30
June 2009, at least 30 days prior to commencing business
(regulation
6(1)).
[4]
In relation to a tyre producer operating on 30 June 2009, regulation
6(3) provides as follows:
"(3)
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 (ie., more or less on 28 September
2009); 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 (ie., 60 days after 23 July2012,
being
before or on 21 September 2012).".
[5]
In relation to a tyre producer commencing business after 30 June 2009
regulation 6(4) provides as follows:
"(4)
A tyre producer commencing business after the commencement of these
Regulations shall not begin operations without an
integrated industry
waste tyre management plan approved by the Minster or without
providing written confirmation to the Minster
of acceptance into an
existing integrated industry waste tyre management plan approved by
the Minister.".
[6]
In relation to a tyre producer who wishes to deregister from an
integrated industry waste tyre management plan regulation 6(6)
provides as follows:
"
(6) A tyre producer must inform the Minister if they deregister from
an integrated industry waste tyre management plan 120
days prior to
deregistering".
[7]
The following prohibitions is provided for in regulation 6(7) which
reads as follows:
''(7)
A tyre producer may not manufacture, import new, part worn,
retreadable casings or vehicles fitted with tyres or distribute
or
sell new, part worn or retreaded tyres, unless they can demonstrate
that they either-
(a)
have an integrated industry waste tyre management plan approved by
the Minister or;
(b)
belong to an existing integrated industry waste tyre management plan
approved by the Minister".
[8]
In relation to the consideration of a waste tyre management plan,
regulation 11(1) and (2) reads as follows:
"
11. (1) The Minister on receipt of an integrated industry waste tyre
management plan -
(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.
(2)
An integrated industry waste tyre management plan that has been
rejected in terms of subregulation (1)(d) must be amended and
resubmitted to the Minister within the timeframe indicated by the
Minister.".
Relevant
facts of the matter
[9]
It is common cause -
(a)
that the First Applicant submitted an integrated industry waste tyre
management plan for approval by the First Respondent on
4 April 2011
and has, upon its rejection by the First Respondent on 15 November
2011 resubmitted- as is provided in regulation
11(2), an amended plan
on 30 July 2012, the determination of which is currently still
pending;
(c)
that an integrated industry waste tyre management plan submitted by
the Third Respondent on 22 February 2011 was approved by
the First
Respondent on 15 November 2011 and published as required by
regulation 11 (4) of the regulations on 23 July 2012;
(d)
that the deadline for compliance with regulation 6(3)fc) is 21
September 2012, being 60 days as from 23 July 2012, being the
date of
publication of the approval of the Third Respondent's integrated
industry waste tyre management plan.
[10]
ft would appear that the First Applicant's members (that, according
to the First Applicant comprise approximately 84 per cent
of formal
tyre and motor vehicle industry in South Africa) and the Second
Applicant have chosen not to register and comply with
the approved
integrated industry waste tyre management plan of the Third
Respondent and to rather await the approval of the First
Applicant's
integrated industry waste tyre management plan.
[11]
At a meeting with the Second Respondent on 23 July 2012 a concern was
raised by the First Applicant of claims that its subscribers
would,
pending the determination of the First Applicant's (re-submitted)
integrated industry waste tyre management plan, be obliged
to comply
with the Third Respondent's integrated industry waste tyre management
plan as from 21 September 2012, failing which they
face the sanctions
as provided in the regulations. The Second Respondent confirmed these
concerns at the meeting,
[12]
On 15 August 2012 the First Applicant addressed a letter to the First
and Second Respondents seeking an undertaking that pending
the
determination of the First Applicant's plan by the First Respondent,
the Second Respondent would not cause or threaten any
tyre producer
supporting the First Applicant's plan with prosecution or sanction
should such tyre producers fail to comply with
the Third Respondent's
plan.
[13]
In a letter dated 27 August 2012 the Second Respondent replied,
relying on, particularly, regulation 6(7), that tyre producers
who
fail to comply with the Third Respondent's plan will face sanction,
including the withdrawal of their tyre importers' import
permits as
well as the exposure to criminal prosecutions.
[14]
The Applicants according launched this application three days later
in which they seek an order -
(a)
in Part A of the Notice of Motion, for an order, pending final
determination of Part B, in terms of which the First and Second
Respondents be interdicted from causing or threatening any tyre
producer who intend to subscribe to the First.
Applicant
s integrated industry waste tyre management plan, as re-submitted,
with prosecution or sanction in consequence of such
tyre producer
failing to cmpiy with the integrated industry waste tyre management
plan of the Third Respondent;
(b)
in Part B of the Notice of Motion, for an order declaring that
pending the determination of the First Applicant's integrated
industry waste tyre management plan, as re-submitted, tyre producers
who intend to subscribe to the First Applicant's integrated
industry
waste tyre management plan, are not obliged to comply with the
integrated industry waste tyre management plan of the Third
Respondent.
Evaluation
[15]
On the one hand, it is, briefly stated, the Respondents' contention
that all tyre producers who does not have its own plan
are, upon a
proper interpretation of the regulations, indeed bound to register
and comply with the Third Respondent's approved
plan with effect from
21 September 2012.
[16]
On the other hand, it is the Applicants' contention -
(a)
that, in relation to the relief sought in Part A, relying on the
decision in lYeosfer v Mitchell
1948 (1) SA 1186
(W), Mariam v
Minister of the Interior
1959 (1) SA 213
(T) and Beecham Group Ltd v
B-M Group (Pty) Ltd
1977 (1) SA 50
(T),
"difficult questions of law" in circumstances of urgency
can be considered as to whether there is prima facie substance
in the
Applicants' contentions;, namely, that the intention contained in the
regulations is not to compel a tyre producer to subscribe
to an
existing plan on a provisional and temporary basis, pending the
Minister's determination;
(b)
that, in relation to the relief sought in Part B, the Applicants
have, particularly, where affidavits have been exchanged by
all the
parties, upon a proper interpretation of the regulations, established
a clear right.
[17]
In relation to the proper interpretation to be assigned to,
particularly, regulation 6(3)(c) of the regulations, it is the
Applicant's contention -
(a)
that the regulations offers two options, namely -
(i)
option A, that a tyre producer has the opportunity of submitting its
own
integrated industry waste tyre management plan (which the
First
Applicant has done);
(ii)
option B, to register with an existing integrated industry waste tyre
management plan (in this case, the integrated industry
waste tyre
management plan of the Third Respondent);
(b)
that the effect of the regulation must be that compliance with an
existing integrated industry waste tyre management plan would
only be
required once the process pursued in terms of option A has been
completed, ie , when it is evident that the Minister's
rejection of
the plan has become final and binding;
(c)
that another interpretation would result in an absurdity which in
turn would result in the regulations being unlawful, unreasonable
and
open to a constitutional attack;
(d)
that the regulations do not intend for compulsory compliance with an
existing plan in the interim pending the final determination
by the
Minister of a plan awaiting such determination.
[18]
In so far as the interim relief sought in Part A is concerned, it is,
furthermore, contended that the balance of convenience
favours the
Applicants and that, furthermore, should the relief claimed be
dismissed, the Applicants will suffer irreparable harm
in that the
First Applicant will be doomed and its demise will be swift.
[19]
As far as the balance of convenience and the Applicants' alleged
irreparable harm are concerned, it is contended -
(a)
on the one hand, that, if the relief claimed is dismissed, there
will, despite the fact, inter alia., that the First Applicant
has
expended at least R11 million on its project in relation to its own
plan, no longer be any raison d'etre for the First Applicant's
existence and the First Applicant's subscribers will have to spend
millions of rand to ensure that their IT and infrastructural
systems
comply with the Third Respondent's plan;
(b)
on the other hand, the First and Second Respondents will suffer no
prejudice were the interim relief granted pending determination
of
Part B be granted and, as far as the Third Respondent is concerned it
will not be generating any income before the end of January
2013.
[20]
As is apparent from what I have summarized from the relevant facts of
the matter, it would appear that in strict compliance
of the
regulations -
(a)
all tyre producers that were operating as such on 30 June 2009 (ie.,
the date of commencement of the regulations) were required
to
register as such at the latest on 30 July 2009;
(b)
a tyre producer that so wished was required to submit an integrated
industry waste tyre management plan before or on 29 August
2009 (ie.
that is 60 days as from the date of registration on 30 July 2009);
(c)
a tyre producer was required to comply immediately with its
integrated industry waste tyre management plan on approval by the
Minister (which is not the case in respect of the First Applicant)
or, if it has not its own approved integrated industry waste
tyre
management plan, as is the case with the First Applicant, to comply
with an existing approved integrated industry waste tyre
management
plan {in this case the plan of the Third Respondent) before on 21
September 2012 (ie., 60 days from the date of approval
of the Third
Respondent's plan.
[21]
It would appear that the First Applicant failed to comply in all
respects with these provisions in that -
(a)
it submitted its integrated industry waste tyre management plan on 4
April 2011 almost nine months after 30 July 2009, being
30 days after
the cut-off date for registration as provided in regulation 6(1) of
the regulations;
(b)
after its plan was rejected on 15 November 2011, it re-submitted its
amended plan almost eight months later on 30 July 2012.
[22]
In view of the provisions of the regulations it would seem that the
regulations were devised in such a manner -
(a)
that the registration process would be completed on the same date,
ie, on 30 July 2009, being 30 days after the commencement
of the
regulations;
(b)
that the integrated industry waste tyre management plans of tyre
producers interested to implement their own plans are to be
prepared
and submitted on the same date, in this case 30 September 2009, being
60 days after the date of registration;
that
a tyre producer that at the time of the commencement of the
regulations does not have its own approved integrated industry
waste
tyre management plan is required to register with any existed
approved integrated industry waste tyre management plan
and
comply within 60 days with such integrated industry waste tyre
management plan.
[23]
It is common cause that at the commencement of the regulations on 30
June 2009 the First Applicant did not have an integrated
industry
waste tyre management plan and had not prepared and submitted an
integrated industry waste tyre management plan before
or on 30
September 2009, being 30 days after registration and 60 days after
registration.
[24]
As I have already indicated, the First Applicant submitted its
integrated industry waste tyre management plan on 4 April 2011,
almost eight moths after the timeframe determined in regulation
6(3)(a).
[25]
It is apparent that the integrated industry waste tyre management
plans of the First Applicant and the Third Respondent were
considered
on the same date when the First Applicant's plan was rejected and the
Third Respondent's plan was approved on 15 November
2011.
[26]
The Third Respondent's plan was published almost eight months later
on 23 July 2012.
[27]
The First Applicant re-submitted its amended plan in terms of
regulation 11(2) eight months after its rejection and seven days
after the Third Respondent's plan was published.
[28]
In my view the First Applicant cannot in the circumstances rely, as
it does, that it cannot be compelled to comply with the
Third
Respondent's approved plan in the interim pending the final
determination by the Minister of a plan awaiting such determination
since it -
(a)
failed to prepare and submit its integrated industry waste tyre
management plan within the prescribed 60 days after its registration
in terms of regulation 6(1);
(b)
after the rejection of its plan on 15 November 2011, re-submitted its
amended integrated industry waste tyre management plans
almost eight
months later and seven days after the publication of the Third
Respondent's plan.
[29]
From the aforegoing, it is apparent that at the time the First
Applicant's amended integrated industry waste tyre management
plans
was re-submitted the period of 60 days envisage in regulation 6(3)(c)
had already commenced running.
[30]
If the First Applicant's contentions are held to be correct it may
give rise to an impossible situation.
[31]
Should the First Applicant's plan be approved after 21 September 2012
a distorted situation will in the application of regulation
6(3)(c)
arise in that the First Applicant's subscribers will be required to
immediately register with, and comply with that plan
only after the
expiry of a period of 60 days so that those subscribers will, as
opposed to all tyre producers who registered with,
and commenced
complying with the Third Respondent's plan as from 21 September 2012.
[32]
Should the First Applicant's plan be rejected after 21 September
2012, an equally distorted situation will arise where the
Applicant's
subscribers who were required to have registered with the Third
Respondent's plan will some how have to register with
the Third
Respondent's plan after 23 July 2012, as opposed to other tyre
producers who indeed registered before or on that date,
and to comply
with that plan on a date that cannot be determined in terms of the
regulations.
[33]
Furthermore, it will be unfair and discriminating to tyre producers
commencing business after the commencements of the regulations
who
are in terms of regulation 6(4) prohibited from commencing business
without a plan approved by the Minister or without providing
proof of
it having accepted to into an existing approved plan. The question
can be asked why should the Applicant's be treated
differently in
that they will be entitled to do business without any plan or having
registered with an existing aproved plan.
[34]
In so far as the First Applicant failed to prepare and submit an
integrated industry waste tyre management plan within the
60 day
period envisaged in regulation 6(3)(a), option A cannot find any
application to the First Applicant and it is left with
option B only,
namely, to register with the approved integrated industry waste tyre
management plan of the Third Respondent and
to comply with that plan
before or on 21 September 2012.
[35]
It is in my view obvious that the First Applicant is relying on a
situation which had arisen because of its delays to properly
comply
with the provisions of the regulations being a situation which would
in all probability not have occurred had it complied
with the
regulations within the prescribed periods.
[36]
It cannot accordingly seek a casus omission in the regulations if it
failed to comply with the compelling provisions and, particularly,
th
timeframes prescribed of the regulations.
[37]
In my view the First Applicant now finds it in a situation for which
it is, due to its delays, to be blamed itself and which
it has
created at its own peril.
[38]
In the circumstances the Applicants' interpretation of the
regulations is in my view clearly wrong and that they for this reason
alone failed to show that they have a clear or even a prima facie
right on which the relief claimed in either Part A or B of the
Notice
of Motion can be granted.
[39]
In the result I am of the view that the interpretation to be assigned
to the regulations is that any tyre producer that has
no integrated
industry waste tyre management plan approved by the First Respondent
or does not belong to an existing integrated
industry waste tyre
management plan, will as from 21 September 2012 not be entitled to
manufacture, import new, part worn, retreadable
casings or vehicles
fitted with tyres or, distribute or sell new, part worn or retreaded
tyres and will be subject to the sanctions
provided in the
regulations and other applicable legislative provisions.
[40]
I in any event fail to see how any of the First Applicant's
subscribers will be prejudiced if they are required to register
and
comply with the Third Respondent's plan even if they wish to do so
with the First Applicant's plan if and when it is approved
since they
are free to deregister, with no financial implications, within 120
days notice as provided in regulation 6(6). The allegations
that they
will be required to spend millions of rand to ensure that their IT
and infrastructural systems of the Third Respondent's
plan is not
substantiated and in any event denied by the Respondents.
[41
] It is accordingly not necessary to consider whether or not they
established the other requirements for either interim or final
relief.
[42]
I need to mention that various helpful and well-reasoned submissions
were made by counsel appearing on both sides, not only
on certain in
limine points, but also on the interpretation of the regulations and
the requirements of interim and final interdicts,
but in view of my
finding on the interpretation to be assigned to the regulations in
the circumstances of this matter and the fact
that I was dealing with
this matter in the urgent court, I mean no disrespect to counsel if I
do not deal with all the submissions
they made save to say that I
indeed considered all the submissions made. Should it, however, in
due course become necessary to
deal with any of those issues I will
of course do so.
[43]
This brings me to the question of costs.
[44]
It was not contended on either side that costs should not follow the
result, including the costs of two counsel where applicable.
[45]
For these reasons the application is dismissed with costs, including
the costs of two counsel where applicable.
P
C VAN DER BY L
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANTS: ADV G W AMM
On
the instructions of: KNOBEL MEYBURGH ATTORNEYS
Ref:
E Knobel/C394
TEL:
011 880 8074
c/o
KLAGSBRUN DE VRIES 3
rd
Floor, Hatfield Plaza 1122 Burnett
Street
Hatfield
PRETORIA
Ref: Mr de Vries
Tel
: 012 362 2280
ON
BEHALF OF THE FIRST AND SECOND
RESPONDENTS:
ADV SALIE JOUBERT
ADV
P A SWANEPOEL
OB
THE INSTRUCTIONS OF:THE STATE ATTORNEY
SALU
Building 255 Andries Street PRETORIA
Ref:
7237/2012/Z80
Mr.
N L Nkuna Tel: 012 309 1554
ON
BEHALF OF THE THIRD RESPONDENT: ADV D A PREIS SC
On
the instructions of: CLIFFE DEKKER HOFMEYER INC
Ref:
R Marcus/cvdv/10092801/R025 021 481 6396
c/o
FRIEDLAND HART SOLOMON & NICOLSON 4-301 & 6-101
Monument
Office Park
79
Steenbok Avenue Monument Park
PRETORIA
Ref: Gerrie Stolp Tel: 012 424 0200
DATE
OF HEARING: 11 September 2012
JUDGMENT
DELIVERED ON: 17 September 2012