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[2012] ZAGPPHC 273
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Retail Motor Organisation and Another v Minister of Water and Environmental Affairs and Another (51148/2012) [2012] ZAGPPHC 273 (12 November 2012)
NOT
REPORTABLE
IN
THE NORTH GAITING HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 51148/2012
DATE:12/11/2012
In
the matter between:
RETAIL
MOTOR
ORGANISATION
…............................................................
First
Applicant
CIRCUIT
FITMENT
CC
...................................................................................
Second
Applicant
and
MINISTER
OF WATER & ENVIRONMENTAL AFFAIRS
….......................
First
Respondent
RECYCLING
& ECONOMIC DEVELOPMENT
INITIATIVE
OF SOUTH
AFRICA
...................................................................
Second
Respondent
JUDGMENT
Tuchten
J:
1.
On 23 July 2012, the first respondent (“the Minister”)
published Government Notice 564 in the Schedule to Government
Gazette
35534, promulgating an Integrated Industry Waste Management Plan
(“the Redisa Plan") developed by the second
respondent
(“Redisa") in an attempt to deal with the problem of the
disposal of waste motor vehicle tyres. The evidence
shows, although
evidence is hardiy necessary, that the disposal of such tyres is a
significant ecological problem.
2
.
The
applicants seek to interdict the implementation of the Redisa Plan
pending the outcome of pending review proceedings to set
aside the
approval of the Redisa Plan by the Minister. The application for an
interim interdict was held to be urgent in separate
proceedings
before Hiemstra AJ and the matter was adjourned for hearing on a date
arranged in accordance with the practice of this
Court and argued
before me on 8 November 2012.
3.
The
first applicant (“RMI") is a voluntary organisation
founded for the purpose of promoting, protecting and encouraging
the
interests of its members and the general motoring public. The second
applicant played little part in the proceedings before
me. Some point
was made in argument in relation to the locus standi
of the
second applicant but as the first applicant manifestly has standing
under s 38(e) of the Constitution, no more need be said
in that
regard.
4.
Redisa
was constituted as a non-profit company, it represents the interests
of a number of significant participants in the tyre
industry. It is a
private industry initiative, not an organ of state and is funded by
private industry financial institutions and
participants in the
industry.
5
.
The
Redisa Plan contemplates substantial capita! expenditure to deal with
the environmental scourge of disposing of waste tyres.
Redisa has
already spent or committed R33 million toward this end. A large part
of this was spent before the ministerial approval
of the Redisa Plan.
6.
The statutory framework and enabling legislation in terms of which
the applicants' challenge to the lawfulness of the Redisa
Plan must
be evaluated is the National Environmental Management Waste Act, 59
of 2008 (“the Waste Act") and the Waste
Tyre Regulations
(“the Regulations") promulgated pursuant to the since
repealed Environmental Conservation Act, 73 of
1989.
1
7.
The Waste Act was enacted to promote the fundamental constitutional
right to a clean, healthy, sustainable environment.
2
The long title and preamble reflect the purposes of the measure:
ACT
To
reform the law regulating waste management in order to protect health
and the environment by providing reasonable measures for
the
prevention of pollution and ecological degradation and for securing
ecologically sustainable development; to provide for institutional
arrangements and planning matters; to provide for national norms and
standards for regulating the management of waste by all spheres
of
government; to provide for specific waste management measures; to
provide for the licensing and control of waste management
activities;
to provide for the remediation of contaminated land; to provide for
the national waste information system; to provide
for compliance and
enforcement; and to provide for matters connected therewith. Preamble
WHEREAS everyone has the constitutional
right to have an environment
that is not harmful to his or her health and to have the environment
protected for the benefit of
present and future generations through
reasonable legislative and other measures that-
(a)
prevent
pollution and ecological degradation;
(b)
promote
conservation; and
(c)
secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development;
AND
WHEREAS waste management practices in many areas of the Republic are
not conducive to a healthy environment and the impact of
improper
waste management practices are often borne disproportionately by the
poor; AND WHEREAS poor waste management practices
can have an adverse
impact both locally and globally;
AND
WHEREAS sustainable development requires that the generation of waste
is avoided, or where it cannot be avoided, that it is
reduced,
re-used, recycled or recovered and only as a last resort treated and
safety disposed of; AND WHEREAS the minimisation
of pollution and the
use of natural resources through vigorous control, cleaner
technologies, cleaner production and consumption
practices, and waste
minimisation are key to ensuring that the environment is protected
from the impact of waste;
AND
WHEREAS waste under certain circumstances is a resource and offers
economic opportunities;
AND
WHEREAS waste and management practices relating to waste are matters
that-
•
require
national legislation to maintain essential national standards;
in
order to be dealt with effectively, require uniform norms and
standards that apply throughout the Republic; and in order to promote
and give effect to the right to an environment that is not harmful to
health and well-being, have to apply uniformly throughout
the
Republic; and require strategies, norms and standards which seek to
ensure best waste practices within a system of co-operative
governance...
8.
To
this end, a clear legislative policy is articulated. The criminal
law, directed as it is toward identifying and punishing offenders
after the event is inadequate to deal with the great challenges of
giving effect to the constitutional environmental imperatives;
so it
is necessary to involve and engage the public and industry
participants in initiatives contemplated by the measure.
9.
To
this end, the Waste Act gives Minister wide powers. For example, she
must in due manner set national norms and standards to deal
with
waste;
3
she must designate a national waste management officer responsible
for coordinating waste management in the national government;
4
she may declare priority wastes;
5
she may extend producer responsibility;
6
she may by due process list waste management activities,
7
upon which no one may conduct such an activity except in the way
determined by the Minister or under license.
8
The
Waste Act lays emphasis on planning. Central to this poiicy decision
is the concept of an industry waste management plan (“IWMP”)
as described in Chapter 7 of the Act and the homely principle,
accepted, I believe, by all responsible adults that he or she
who
makes a mess should bear the prime responsibility for cleaning it
up. To this end, the Minister may, by due process, require
categories of persons or industry participants and organs of state
to develop an IWMP for her approval,
9
in which case she is given certain coercive powers to ensure
compliance with her requirements. In addition, where she exercises
her power to require the development of an IWMP, she must specify
the information that must be included in it.
10
Although guide lines for such specified information are laid down,
under s 30(2)(l), the specification may include any matter
that may
be necessary to give effect to the objects of the Act.
11.
Consistent with the policy of collaboration between the executive,
government and the private sector in relation to waste management,
any person, category of persons or industry may elect at their own
initiative to prepare an IWMP for the Minister’s approval.
11
12.
Where
an IWMP is developed in accordance with a direction from the
Minister, the person responsible for developing it (whom I shall
describe in this judgement as the plan developer) must take
appropriate steps to bring its contents to the attention of
interested
parties, who include organs of state, interested persons
and the public and must follow any directions given by the Minister
in
regard to the consultation process that must be followed.
12
13.
Section
32(1) prescribes what happens when the Minister receives an IWMP:
The
Minister, acting in terms of section 28 (1) or 29 (1), or the MEC
acting in terms of section 28 (2) or 29 (2), 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 or
MEC for
approval;
(c)
require
amendments to be made to the plan within timeframes specified by the
Minister or MEC; 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 (2) or 29 (1)
or (2), as the
case may be, or if a consultation process in accordance with section
31 was not followed,
14
.
The
prescriptions in s 32(1) are cieariy not definitive of the Minister's
powers, i give two examples:
14.1
Her
power expressly conferred in s 32(1)(d) to reject an IWMP extends
only to those submitted to her pursuant to a direction under
s 28 or
s 29. The purposes of the measure however demand that she has the
implicit power to reject an IWMP submitted otherwise
than in
accordance with a ministerial direction; and
14.2.
Under
s 32(1 )(c), the Minister is expressly given the power to “require
amendments to be made to the plan. The
purposes
of the measure require too that the Minister be given the power to
effect amendments at her own initiative.
15.
Under
ss 32(6) and (7), once an IWMP has been approved, notice to that
effect must be given in the Government or other relevant
Gazette.
Curiously, there does not appear to be any provision in the Waste Act
under which an IWMP duly so published is made binding
on any persons
or category of persons but in s 67(1 )(d) read with s 68(2), it is an
offence to contravene or fail to comply with
an IWMP punishable by a
fine of up to R5 million or imprisonment for up to five years, or
both. This point was not addressed in
argument and I shall therefore
say no more about it.
13
16.
The
Waste Act expressly lays down in ss 72 and 73 the procedures the
Minister must follow in regard to consultation and public
participation. Sections 72(1) provides:
Before
exercising a power which, in terms of this Act, must be exercised in
accordance with this section and section 73, the Minister...
must
follow such consultative process as may be appropriate in the
circumstances.
17.
While
the obligation to consult is limited to the consultative process
which is appropriate, the Minister’s obligations in
relation to
public participation are wide reaching. Section 73 requires that
(1)
Before exercising a power that, in terms of this Act, must be
exercised in accordance with this section, the Minister or MEC,
as
the case may be, must give notice of the proposed exercise of the
relevant power-
(a)
in the
Gazette; and
(b)
in at
least one newspaper distributed nationally or, if the exercise of
power will only affect a specific area, in at least one
newspaper
distributed in that area.
(2)
The notice must-
(a)
invite
members of the public to submit to the Minister or MEC, as the case
may be, within no less than 30 days of publication of
the notice in
the Gazette, written representations on or objections to the proposed
exercise of power; and
(b)
contain
sufficient information to enable members of the public to submit
representations or objections.
18
.
The
consultation and public participation procedures in the Waste Act
seek to give effect to another fundamental right; that of
just
administrative action under s 33 of the Constitution which must be
read with the statute enacted, pursuant to s 33(2), to
give effect to
that right, the Promotion of Administrative Justice Act, 3 of 2000
(“PAJA"),
19.
The
Regulations apply specifically to what I may describe loosely as the
tyre industry and participants in that industry. Tyre producers,
as
defined in reg 1
14
must under reg 6(3) either prepare and submit an "integrated
industry waste tyre management plan” (“liWTMP’’)
to the Minister or register with an existing one and must in either
event comply with the IIWTMP applicable to it. Reg 9 lays down
that
an IIWTMP must “at least" address certain specified
issues. Among those are that it must provide an annual projection
of
the quantities
and
types of tyres that are manufactured or imported that will become
waste tyres
15
and will be managed through the “integrated industry waste tyre
management plan" (reg 9(1)(b)); provide details of the
manner in
which the contribution of each member of the plan will be determined
and how the contribution will be collected and distributed
(reg 9(1
)(k).
20.
Regs
9(1)(i) and 9(1)0) provide a clue to a policy consideration
underlying the regulation of waste tyre management plans: reg 9(1)(i)
appears to require that “all” waste tyres be managed in
accordance with the plan within five years of the date of its
approval while reg 9(1)(j) provides that the plan must provide
estimates of the costs of implementing the activities of the plan
“for the first
16
five
years”. It therefore seems that the regulation contemplates
that the plans in question be justified in terms of five
year spans.
21
.
Reg
10(1) requires the plan developer to bring the contents of the
proposed IIWTMP to the attention of relevant organs of state,
interested persons and the public and call for comments to the plan.
Reg 10(2) requires the plan developer to consider any comments
received and transmit them, with any responses to such comments, and
the plan itself to the Minister.
22.
Reg
11 provides that on receipt of the plan, the Minister has a number of
options and duties. Reg 11 (1 )(a) empowers the Minister
to call for
additional information and a revised plan; reg 11(1)(b) obliges the
Minister to publish the IIWTMP in the Government
Gazette for comment;
reg 11(1)(c) obliges the Minister to send any comments received by
the Minister to the plan developer for
"consideration and
incorporation where relevant".
23
.
Under
reg 11(1 )(d) the Minister
...
must, after incorporation of any comments, review the revised
[IIWTMP], approve it with or without conditions, or reject the
[IIWTMP] with reasons and with a timeframe for resubmission.
24.
It
is to be noted that the regulation, read alone, does not in terms
give the Minister the power to initiate amendments to draft
IIWTMPs
received under reg 10 or prescribe the procedure to be followed if
any amendment, whether effected by the Minister or the
plan
developer, is contemplated. These questions are at the heart of the
dispute as it developed before me.
25
.
The
Minister's approval must “at least specify the period for which
the approval is issued, which period may be extended by
the
Minister”.
17
Once the Minister approves an IIWTMP, she must give notice of that
fact in the relevant Gazette.
18
26.
Reg 12
requires that an IIWTMP
...
must be revised and resubmitted for approval by the Minister at 5
year intervals
19
or sooner if the Minister or the [plan developer] identifies that
amendments are required,
27
.
A
revised I(WTMP must be published in the Government Gazette for a
period of 30 days, no doubt for the purpose of eliciting comment
from
interested parties.
20
28.
Reg
17(1)(b) read with regs 12(3) and 17(2) render it an offence to
contravene or fail to comply with an IIWTMP or a revised IIWTMP,
punishable by a fine or by imprisonment or both.
29.
The
Regulations were published on 13 February 2009 and made effective
from 30 June 2009. The Waste Act commenced on the following
day, 1
July 2009. Around this time, Redisa began to develop an IIWTMP,
initially with the support of RMI. Some 18 months later,
RMI withdrew
its support for the Redisa Plan. The papers do not say why this
happened.
30.
An
earlier version of the Redisa Plan was approved by the Minister and
gazetted on 28 November 2011. RMI made no comment in relation
to and
took no action against that version of the Redisa Plan. However, on
21 December 2012, RMI submitted its own draft IIWTMP
to the Minister.
31.
It
appeared that there had not been due publication of the Redisa Plan
for a period of 30 days and the SA Tyre Recycling Process
Company NPC
moved the South GAITING High Court urgently under case no 1944/2012
to suspend the implementation of the Redisa Plan
pending a review. On
26 January 2012, the Minister withdrew her approval of the Redisa
Plan, thereby rendering review unnecessary.
32.
Redisa
duly readvertised its Plan and called for comment. Much comment was
received and addressed although none was forthcoming
from RMI. It
must be remembered however that RMI is an umbrella organisation and
the papers do not show the extent, if any, to
which RMI’s
members participated in the comment process.
33.
Be
that as it may, on 10 April 2012, the Minister’s director
general: waste management convened a meeting to discuss the three
draft IIWTMPs that the Minister had received, from Redisa, RMI and
SATRP, the applicant in the earlier urgent application to the
South
GAITING High Court. At this meeting, RMI raised no relevant concerns.
34.
On
17 April 2012, the Redisa Plan was once again gazetted. On 20 April
2012, the Minister addressed correspondence to RMI requiring
additional information under reg 11(1)(a). To date, RMI has not
responded to the Minister. On 16 May 2012, RMI, through MrPremlall,
the deponent to RMI's main founding affidavit, amongst many others,
commented on the draft Redisa Plan. On 23 July 2012, the Minister
approved the Redisa Plan. Her notice of approval, together with the
text of the version of the Redisa Plan which she approved,
was
gazetted.
35.
By
notice of motion dated 3 September 2012, the applicants moved the
court for relief. The relief sought was in two parts; in Part
A,
which is presently before me, the applicants seek to interdict the
implementation of the Redisa Plan pending the review relief
which is
the subject of Part B.
Although
a number of grounds of attack are contained in RMi’s
affidavits, I shall deal in this judgment only with those
which were
supported in oral argument. I have however considered all the
grounds raised. My conclusion is that the grounds not
mentioned in
oral argument have at this stage not been substantiated. I say this,
bearing in mind that the Minister has not yet
provided the record of
her decision under Rule 53 and that further evidence may yet be
forthcoming to support those grounds.
37.
The
first ground of attack with which I shall deal relates to the fact
that the version of the Redisa Plan as gazetted and approved
differs
from the version of the Plan put up for public comment. The approved
version of the Redisa Plan contains an item 15.1 which
had been
entirely omitted from the version put up for comment. Item 15.1
reads:
Waste
Reduction Targets
The
following are the targets for waste reduction:
Within
12 months processing 30 000 tons/year of waste tyres using existing
waste tyre processors.
•
Within
24 months, processing of 90 000 tons/year of waste tyres.
Within
36 months, processing of 150 000 tons/yea r of waste tyres.
.Within
60 months. Processing of 400 000 tons/year waste tyres arising.
This
will be subject to industry participants being compliant to the
scorecard criteria and the timeous processing of E1A applications.
Note that the tonnages to be processed will include an increasing
proportion of historical tyres to approximately 25% by year 5.
Refer
to the section Job Creation
below
for job creation timeframes.
38.
In
his replying affidavit, Mr Premiall makes clear that he did not
initially appreciate that the approved Plan differed from that
put up
for comment. The addition of item 15.1 was discovered through the
industry of RMI’s lawyers when they were finalising
RMI's
replying affidavit. Duly prompted by his lawyers, Mr Premiall took
the point in reply and explained his failure to take it
in the
founding affidavit. The respondents were afforded an opportunity to
deal with the new point They did so. The reactions of
the respondent
were at both a procedural and a substantive level.
39.
At
the level of procedure, while it is true that an applicant must make
her case in the founding affidavit, this is, as been said,
not a law
of the Medes and the Persians. The departure from recognised
procedure has been explained. The point raised, at the level
of
substance, is not frivolous. The respondents have been heard on the
new materiat and are not prejudiced. In the exercise of
my
discretion, I shall entertain the point. I
deal
below with its merits.
40.
The
Redisa Plan is a substantial document, running to some 47 printed
pages, with annexunes, in the record. It was presented on
the basis
that it was ... structured around there being only one waste tyre
management plan, on the basis that it is the only workable
approach.
41.
This
prompted an attack on the basis that the Minister has misconceived
her powers. It is suggested that because Redisa
sees
its Plan as the only one which will operate in the industry, the
Minister did so as well. One only has to articulate the proposition
to reject it. The proposition seeks to impose on the Minister the
subjective viewpoint of Redisa. There is simply no basis in logic
for
doing so. The Minister has denied having any such perception of her
powers. The reaction of the Minister in calling for additional
information on the RMI Plan demonstrates that she had not closed her
mind to the possibility of there being in operation within
the tyre
industry more than one IIWTMP. There is no substance in this attack.
42.
The
next ground of attack is that while the Redisa Plan requires those
engaged by its terms to pay levies, there is no provision
in the
legislation under which an IIWTMP can legitimately provide for the
payment of levies. I disagree. Reg 9(1)(k) provides in
terms that a
Plan must provide details of the manner in which the contribution of
each member of the IIWTMP will be determined
and how the contribution
will be collected and distributed. Section 12 (1)(g) of the Waste Act
requires that an IWMP, of which
an IIWTMP is a species, must indicate
the financial resources that are required to give effect to the plan.
43.
It
must be borne in mind that the legislative scheme contemplates a
private sector solution to an environmental problem, for the
creation
and administration of which, broadly, the private sector tyre
industry is responsible, to be devised and administered
with the
approval but ultimately independent of government. It is not
contemplated that public purse is to be drawn upon in the
implementation of the IIWTMP. As the legislative scheme demands that
tyre producers as defined be members of one or other IIWTMP,
it is
inevitable that they bear the cost of the management of the waste so
created. All the other participants in the industry
and, of course,
the consumers of their products, are downstream of tyre producers who
are thus positioned to pass the cost of waste
management on,
ultimately to consumers. Even if there had been no provision in the
legislative scheme for levies, I would have
found it necessarily
implicit in the scheme as devised. I therefore conclude that an
IIWTMP must provide for financial contributions
by its members and
may by necessary implication provide for levies, amongst other
reasonable financing mechanisms, in so doing.
44.
Then
the applicants contend that, properly analysed, the Redisa Plan is so
flawed that no reasonable decision maker could have approved
it. In
this regard, the applicants say that given the targets which are
listed in item 15.1 of the Redisa Plan, quoted above, Redisa
will not
deal with the historical waste tyre stockpiles.
45
.
In my
view, this argument is founded on the non sequlturthat
because
the Redisa Plan will not be able to dispose of the whole stockpile,
it should not be allowed to dispose of any waste. The
simple answer
to the argument is that one has to begin somewhere. It is better to
dispose, in an ecologically acceptable way, with
some of the waste
than to do nothing. RMI's argument, if correct, should form the basis
for the proposition that Redisa’s
inability to dispose of all
of the tyre waste demonstrates the need for additional Plans - such
as that of RMI itself.
46.
In
addition, I have before me the opinion, on oath, of Mr Thomas Becker,
the chief executive officer of Genan Business & Development
A/S,
a Danish company, which is the largest tyre recycler in the world. Mr
Becker has impressive qualifications and credentials
in the fields of
environment, energy and climate change management and has through his
association with Genan a thorough knowledge
of most tyre recycling
systems in different countries on different continents.
47
.
Genan
and Mr Becker have followed the development and implementation of the
Redisa Plan and commented publicly on it in a letter
to the Director
General of Environmental Affairs. While suggesting a series of minor
amendments and improvements, Mr Becker is
of the view that the Redisa
plan is state of the art, as it will be efficient, transparent and
environmentally beneficial.
48.
The
proper forum for the final ventilation of the issue whether the plan
is so flawed as to be unacceptable to any reasonable decision
maker
is the court hearing the review. Further relevant evidence may, as f
have said, be forthcoming. I shall therefore say no
more than that
nothing in the papers as they presently stand justifies a conclusion
favourable in this regard to the applicants.
49.
This leaves for consideration the issue revolving around item 15.1.
In my view, the effect of ss 72 and 73 of the Waste Act,
read
together with s 33 of the Constitution and ss 3 and 4 of PAJA is to
place it beyond dispute that the Minister must (leaving
aside
situations of urgency, on which I express no opinion) at the very
least follow what is described in s 4 of PAJA as a notice
and comment
procedure in relation to draft IWMPs (and thus IIWTMPs) submitted to
her for approval. This requires that each material
provision of each
such plan be published in the Government Gazette as provided for in s
73.
50.
In this regard, it is no answer, in my view, to say that the bulk of
the
provisions of the Redisa Plan were so published. The interested
person is entitled to notice of every material such provision.
This
conclusion disposes of the argument, made on behalf of the
respondents before me, that the Regulations do not in terms require
that prospective amendments effected after the conclusion of the
notice and comment process must be put up for comment by interested
persons. The short answer to that submission is that the Waste Act
itself requires that they must.
51.
I am quite unable to find, as contended for on behalf of the
respondents, that the material in item 15.1 is not material. It
bears
upon the efficacy of the Plan as a whole. It bears upon the claim by
Redisa that its Plan is the complete answer to the waste
tyre d
isposal problem. Again, however, this is a matter to be determined by
the reviewing court. It is sufficient for me to say
at this stage
that in my view the applicants have substantial prospects of success
on this ground. In Affordable Medicines Trust
& Others v Minister
of Health & Others,
21
the Constitutional Court summarised the legal position as follows at
paras 48 and 49:
Our
constitutional democracy is founded on, among other values, the
“(s)upremacy of the Constitution and the rule of law.”
The very next provision of the Constitution dictates that the
"Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid”. And to give effect to the
supremacy of the Constitution, courts “must declare that
any
law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency”. This commitment
to the
supremacy of the Constitution and the rule of law means that the
exercise of all public power is now subject to constitutional
control.
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of the
rule of law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution. It entails
that both the Legislature and the Executive
“are constrained by
the principle that they may exercise no power and perform no function
beyond that conferred upon them
by Saw”. In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control
of public power, [footnotes omitted]
52
.
The
requirements for an interim interdict are, as recently emphasised in
National Treasury and Others
v
Opposition to Urban Tolling Alliance [2012] ZACC 18 para 41 (“OUTA”),
a prima facie
right
even if open to some doubt; a reasonable apprehension of irreparable
and imminent harm to the right if an interdict is not
granted; the
balance of convenience must favour the grant of the interdict; and
the applicant must have no other remedy. It is
also trite that
although the four factors must be established, the more well
established, and thus less open to doubt, the right,
the less the
need for the balance of convenience to favour the applicant.
53.
This
being a case in which the applicants seek a temporary restraint
against the exercise of statutory power well ahead of the final
adjudication of the applicants' case, I must bear in mind, as OUTA
para 47 makes clear, that relief of this nature must be granted
only
in the clearest of cases and after (I would respectfully add, where
appropriate) a careful consideration of separation of
powers harm.
54.
The
harm contended for by the applicants is twofold: firstly, that the
members of RMI who are tyre producers will have to submit
to the
injustice of having to subscribe against their wills to an IIWTMP
which offends against the principle of legality; and,
secondly, that
they will have to pay levies.
55
.
I do
not think the first consideration has any real weight in isolation.
The right to be compelled only to do that which the law
permits is
not denied, merely deferred until the reviewing court has pronounced.
There is no cogent evidence in the papers as to
the monetary quantum
the levies are likely to impose on the average tyre producer or on
any specific tyre producer, i was told
in argument that the figure is
something between R8 and R12 per tyre. Whether this relates to all
tyres or merely to passenger
vehicle tyres is unknown. In mitigation
of this harm, the aggrieved tyre producer has only to stipulate when
paying the levy that
it does so under protest and it will have, if
the levy is found to be unlawful, an action for the return of its
money founded on
the condlctio indebiti.
22
I
have considered whether it can be said that because the money may be
recovered by legal proceedings, it can legitimately be said
that
there is no irreparable harm. In my view there will indeed be, harm
in the fact that the tyre producer is required to pay
now that which
it notionally does not lawfully owe. The monetary harm that will
ensue from the fact that a tyre producer is required
to pay a levy
that might turn out to be unlawfully levied is thus slight, but not,
in my view, so negligible as to fall within
the scope of the maxim de
minimis non curat
l
ex.
56.
I accept that the affected tyre producers have no alternative remedy
in the short term. Unless and until an IIWTMP more acceptable
to them
is approved by the Minister, they are compelled by law to subscribe
to the Redisa Plan. Their remedy in the medium to long
term is to
develop an alternative IIWTMP. That may become a factor in the review
if RMI does not press ahead with its own Plan.
57.
This brings me to the question of balance of convenience, which means
the prejudice to the applicants if the interdict is refused,
weighed
against the prejudice to the respondents if it be granted. Subject to
one factor with which I shall deal below, the balance
of convenience
would have been in my view tilted strongly in favour of the
respondents. The first respondent has a constitutional
and statutory
duty to manage the disposal of waste tyres. It is manifest that the
sanctions which the criminal law imposes, after
the fact, are
inadequate to deal with the problem. That both Redisa and RMI have
sought to develop Plans demonstrates that both
of them recognise a
need for the organised industry to deal with the matter. Redisa, for
its
part,
has expended or committed R33 million towards its project. There is
no reason to believe that the Department of Environmental
Affairs and
Redisa are anything but bona fide
in
their respective spheres in relation to the Redisa Plan and the RMI
Plan. The failure by RMI to respond to the Minister’s
request
for information indicates that RMI is not vigorously developing its
Plan. Against that, the tyre producer members of RMI
will have to
pay, pending final determination of the review, modest sums toward
their levy obligations which they will probably
be able to recover if
the review goes in their favour and which they in any event will
probably pass on downstream to the ultimate
consumers.
58
.
I do
not see the case as raising any separation of powers issues. The
issue on which I have found the applicants have prospects
of success
relates not to the polycentric evaluation of policy considerations, a
power which has been entrusted to the Minister
by legislation, but to
whether the procedure followed by the Minister in relation to item
15.1 is in compliance with law.
59.
As
I have said, I must balance the various factors. There is one which I
have not yet mentioned which tilts the scale against the
respondents.
Section 2 of the Constitution provides that conduct inconsistent with
the Constitution is invalid. 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.
60.
This
being a constitutional matter, I may under 172(1 )(b) of the
Constitution make any order which is just and equitable. I have
anxiously considered whether there is any order other than an
interdict which would, on the conclusions to which I have come, be
just and equitable. Counsel for the respondents did not suggest one
and I cannot think of one.
61
.
The
order of this court must therefore be as follows:
1.
Pending the final determination of the relief sought in Part B of the
notice of motion, the first and second respondents are
interdicted
and restrained from proceeding with the
implementation
of the second respondent's integrated waste management plan as
approved in Government Gazette notice 564 and as published
in the
Schedule to Government Gazette no. 35534 on 23 July 2012;
2.
Costs will be costs in the review, ie the proceedings before the
court hearing the case for relief in Part B of the notice of
motion,
provided that such costs should be taxed on the footing that the
employment of senior counsel and, where applicable, senior
and junior
counsel was justified.
NB
Tuchten
Judge
of the High Court
12
November 2012
1
Under
s 80(2) of the Waste Ad, any regulation made in terms of a provision
of the ECA in force immediately before the date of
the coming i nto
effect of the Waste Act remains in force and is considered to have
been made under the Waste Act until anything
done under the Waste
Act overrides it.
2
Section
24 of the Constitution reads:
Everyone
has the right-
to
an environment that is no! harmful to their health or well-being;
and
to
have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures that-
prevent
pollution and ecological degradation;
promote
conservation; and
secure
ecological
ly
sustainable development and use of natural resources while
promoting justifiable economic and social development.
3
Section
7
4
Section
10
5
Section
14
6
Section
16
7
Section
19
8
Section
20
9
Sections
28 and
10
29
Section 30
11
Section
28(7)
12
Section
31(1)
13
Under
reg 6, a tyre producer must either, within a prescribed time period,
submit its own such plan to the Minister for approval
or register
and comply with an existing plan. I shall return to this point.
14
any
person or institution engaged in the commercial manufacture or
import of tyres and retreadable casings, and the import of
vehicles
fitted with tyres for distribution in South Africa."
15
“...any
person or institution engaged in the commercial manufacture or
import of tyres and retreadable casings, and the
import of vehicles
fitted with tyres for distribution in South Africa."
16
Own
emphasis
17
Reg
11 (3). No period for approval or extension is specified, which
suggests that the plans are not legislatively restricted to
lifespans of five years or less.
18
Reg
11(4)
19
Which
suggests that the pians are indeed legislatively restricted to
lifespans of five yea rs or less, although under reg 12(4)
the
Minister may exempt the plan developer from submitting a revised
plan if she, upon a request for exemption, is satisfied
thart the
“plan continues to meet the objectives of the regulations and
does not require amendments.
20
Reg
12(2)
21
2005
(3) SA 247 (CC)
22
Compare
OUTA
, para 54