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[2020] ZASCA 40
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Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited (342/2019) [2020] ZASCA 40 (17 April 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 342/2019
In
the matter between:
MINISTER
OF ENVIRONMENTAL
AFFAIRS FIRST
APPELLANT
DEPUTY
DIRECTOR-GENERAL: LEGAL,
AUTHORISATIONS,
COMPLIANCE
AND
ENFORCEMENT SECOND
APPELLANT
and
ARCELORMITTAL
SOUTH AFRICA
LIMITED RESPONDENT
Neutral
citation:
Minister
of Environmental Affairs and Another v ArcelorMittal South Africa
Limited
(Case no
342/2019)
[2020] ZASCA 40
(17 April 2020)
Coram:
PETSE DP, SWAIN, MOKGOHLOA and MBATHA
JJA and KOEN AJA
Heard
:
21 February 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 17 April
2020
Summary:
Environmental law –
protection of environment – prohibition against undertaking
identified activities without authorisation
– nature and scope
of the powers of environmental authorities – pre-existing
activities prior to enactment of Environmental
Conservation Act 73 of
1989 as well as National Environment Management Act 107 of 1998
(NEMA) that have not been declared as identified
activities not
subject to the strictures of NEMA and National Environment Management
Waste Act 59 of 2008 (NEM:WA) – Basic
Oxygen Furnace slag that
is not unwanted or rejected or abandoned not constituting waste as
defined in NEM:WA – waste management
licence in terms of
s 49(1)
(a)
of NEM:WA not required in order to deal with such slag.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Molefe J, sitting as court of
first instance): judgment reported
sub
nom Arcelormittal South Africa Limited v Minister of Environmental
Affairs and Another
[2018]
ZAGPPHC 577; 2018 JDR 0957 (GP).
1 The appeal is dismissed with costs, including the
costs of two counsel.
2 The order of the High Court is supplemented to the
extent reflected below:
‘
The directive and compliance
notice issued by the Deputy Director-General: Legal, Authorisation,
Compliance and Enforcement on 7
December 2015 are reviewed and set
aside.’
JUDGMENT
Petse DP (Swain, Mokgohloa and Mbatha JJA and Koen
AJA concurring)
Introduction
[1]
This appeal is against an order
[1]
of the Gauteng Division of the High Court, Pretoria (the High Court)
in terms of which the decisions of the first appellant, the
Minister
of Environmental Affairs (the Minister), were reviewed and set aside
and a declarator issued. The Minister had, on 5 July
2016, dismissed
the internal appeal lodged by the respondent, ArcelorMittal South
Africa Limited (AMSA), under s 43(8) of the National
Environmental
Management Act 107 of 1998 (NEMA) against the directive and AMSA’s
objection to the compliance notice issued
by the second appellant,
the Deputy Director-General: Legal, Authorisations, Compliance and
Enforcement (the DDG) in terms of s
31L of NEMA on 7 December 2015.
[2]
The appeal, in essence, raises four interrelated questions. The first
is whether AMSA was precluded from disposing its Basic
Oxygen Furnace
slag (BOF slag) at its disposal site which it had operated since the
1970s, and from selling recycled BOF slag to
its customers in the
road construction and agricultural sectors without a waste management
licence (WML) or exemption under ss
49 and 74, respectively, of the
National Environmental Management: Waste Act 59 of 2008 (NEM:WA). The
second is whether customers
to whom AMSA sold its BOF slag required a
WML in order to purchase AMSA’s BOF slag. The third is whether
the issuance to
AMSA by the Department of Environmental Affairs (the
Department) of decommissioning and construction licences in 2011
meant that
AMSA could no longer exercise its pre-existing rights that
it had enjoyed long before the coming into operation of the
Environmental
Conservation Act 73 of 1989 (ECA), and later the
NEM:WA. The fourth is whether the High Court was correct, in the
context of the
facts of this case, to: (a) review and set aside the
Minister’s decision to dismiss AMSA’s internal appeal;
and (b)
grant declaratory relief. The appeal comes before this Court
with the leave of the High Court.
[3]
This appeal is about the protection of the environment against
degradation and its attendant ill effects on humans and the ecosystem
as well as the interpretation of the relevant regulatory statutory
framework. It is also concerned with the powers and obligations
of
the environmental authorities which fall under the auspices of the
Department to regulate activities that may have a substantial
detrimental impact on the environment.
[4] Section 24 of the Constitution of the Republic of
South Africa Act 108 of 1996 (the Constitution) provides that:
‘
Everyone has the right—
(a) to an environment that is not harmful to their health or
well-being; and
(b) to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures
that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.’
The
NEMA and the NEM:WA are two legislative measures contemplated in s 24
of the Constitution.
[5] The preamble to NEMA, after acknowledging that ‘many
inhabitants of South Africa live in an environment that is harmful
to
their health and well-being’, recognises the right of everyone
‘to an environment that is not harmful to his or
her health and
well-being’. It imposes an obligation on the State to ‘respect,
protect, promote and fulfil the social,
economic and environmental
rights of everyone and strive to meet the basic needs of previously
disadvantaged communities’.
[6]
On the other hand, the long title of the NEM:WA describes its
overarching purpose as being to reform the law regulating waste
management. This, it continues, is ‘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 this end, the
NEM:WA
makes provision for,
inter
alia
, ‘the
licensing and control of waste management activities’; ‘the
remediation of contaminated land’; and
for ‘compliance
and enforcement’ measures.
[2]
The parties
[7]
The first appellant is the Minister of Environmental Affairs. The
second appellant is the Deputy Director-General: Legal,
Authorisations,
Compliance and Enforcement in the employ of the
Department. He is the functionary who issued the directive and
compliance notice
that were central to the review application in the
High Court. For convenience, I shall hereinafter refer to the
Minister and DDG
collectively as the appellants, unless the context
dictates otherwise.
[8] The respondent is ArcelorMittal South Africa Limited
which is a public company incorporated in terms of the company laws
of
the Republic. It has its registered address at Delfos Boulevard,
Vanderbijlpark in Gauteng. AMSA is one of the country’s oldest
and leading steel manufacturers. It manufactures various steel
products that include, amongst others, rods, billets and reinforcing
bars. This appeal relates to its Newcastle operations.
The facts
[9]
As already indicated, AMSA manufactures, as its core business,
various steel products. It has been doing so for decades now
and at
least from the 1970s. One of the by-products of its steel
manufacturing process is what AMSA describes as the Basic Oxygen
Furnace slag (BOF slag). The BOF slag is formed in the course of the
conversion of liquid iron, from the blast furnace, into steel
in a
basic oxygen furnace. Upon completion of the process, molten crude
steel gathers at the base of the furnace whilst the liquid
slag
floats on top. The crude steel and the slag are tapped into separate
pots in a process generating temperatures above 1500°
centigrade.
[10]
At its Newcastle operations, AMSA’s BOF slag is derived from
two sources. These are described by AMSA as ‘current
arisings’,
which is BOF slag that has been temporarily stockpiled, crushed and
screened for delivery to third parties for
use either as lime in the
agricultural sector for soil conditioning or as an aggregate in road
construction and rehabilitation.
The other source is what is called
‘reclaimed slag’. Reclaimed slag represents BOF slag that
is temporarily deposited
into AMSA’s disposal site for storage
because it cannot be immediately sold as a secondary product to third
parties. Nevertheless,
it remains, despite its temporary deposit into
a waste disposal site, of commercial value to AMSA. When it is
required for sale
to third parties it is retrieved from the disposal
site, crushed and screened on-site by another entity acting as AMSA’s
agent in order to convert it to the specifications required by AMSA’s
customers. The sale of BOF slag, be it in the form of
current
arisings or reclaimed slag, generates revenue for AMSA which equates
to an average of some R1,1 million per month.
[11]
During February 2013, Environmental Management Inspectors from the
Department of Water Affairs conducted what the DDG described
as a
‘second follow-up inspection’ of AMSA’s Newcastle
operations with a view to determining whether AMSA complied
with the
‘newly issued and applicable permits/licences/authorisations’
at its sites. This was followed by a notice
issued by the Department
to AMSA under s 31H of the NEMA.
[3]
[12]
Several exchanges followed between the Department and AMSA, the
latter making representations which culminated in the DDG issuing
a
pre-compliance notice and pre-directive on 23 July 2014. These were
followed by further representations from AMSA on 22 September
2014
and 5 December 2014, a meeting between the representatives of AMSA
and the Department, concluding with further representations
by AMSA
on 21 September 2015. AMSA’s representations had a single
objective, which was to dissuade the Department from issuing
a
compliance notice and directive as foreshadowed in the pre-compliance
notice and pre-directive of 23 July 2014. However, all
of these
exchanges came to naught for, on 7 December 2015, the DDG issued
combined compliance notice and directive under ss 31L
[4]
and 28(4)
[5]
of the NEMA, respectively.
[13]
So far as is relevant for present purposes, the compliance notice
advised AMSA that its disposal of BOF slag into the existing
BOF slag
disposal site (BOFSDS) was unlawful as AMSA was not a holder of a WML
issued in terms of s 49(1)
(a)
of the NEM:WA. In addition, the DDG took the view that the sale of
BOF slag, either in the form of current arisings or reclaimed
slag,
required the third parties to whom the slag was sold to hold WMLs in
terms of NEM:WA. Paragraph 11.1 of the compliance notice
called upon
AMSA to ‘[i]mmediately (within 24 hours) cease with the
disposal of waste into the BOF slag disposal site until
such time
that the Department agrees in writing that activities may
recommence’. The notice further required AMSA to forthwith
desist from selling slag to third parties unless those parties could
demonstrate that they held the requisite licences.
[6]
[14]
The DDG justified his invocation of s 31L of NEMA on the grounds that
AMSA was operating a BOFSDS without a WML. The DDG tellingly
noted
that this BOFSDS had ‘commenced operation prior to 1997’.
As to the directive, the DDG raised several concerns
about AMSA’s
activities which he considered caused or had the potential to cause
significant pollution or degradation of
the environment. He listed,
amongst other things, the following activities to underscore his
assertions: (a) dumping of waste on
unlined area; (b) absence of
adequate and effective stormwater management; (c) use of an unlined
slag and tar mixing area without
reasonable preventive or mitigating
measures in place; (d) use of an unlined scrap storage area that was
likely to contaminate
soil and groundwater with heavy metals in the
event of leakage; (e) leaking sulphuric acid tank outside the
pulverised coal injector;
(f) unlined temporary slag storage area
inside and outside the blast furnace; (g) unlined scrap yard outside
the steel plant; (h)
unlined slag storage area outside the steel
plant; (i) disposal of slag at the unlined BOF slag disposal site;
(j) unlined waste
water emergency dam which was likely to cause
groundwater contamination through seepage; (k) use of silted
evaporation tanks; and
(l) sale of slag to companies that were not in
possession of the requisite WMLs.
[15]
As a result of these perceived infractions, the DDG directed AMSA to:
(a) ‘[i]mmediately cease with the disposal of waste
into the
BOF slag disposal site until such time that the Department agrees in
writing that activities may recommence’; and
(b) ‘[i]mmediately
cease the selling of slag to outside companies, unless proof that
[the] said companies are in possession
of a WML, has been obtained.
Provide the Department with a list of companies that your slag has
been sold to thus far, within seven
(7) working days and proof that
[the] said companies are in possession of the required waste
management licences’.
[16]
The directive went on to draw AMSA’s attention to the
provisions of ss 20
(b)
and 67(1)
(a)
of the NEM:WA. Section 67(1)(a) makes it an offence for anyone to
commence, undertake or conduct a waste management activity, except
in
accordance with a WML issued in respect of that activity. And s 68(1)
provides that any person who contravenes or fails to comply
with s 20
will, upon conviction, be liable to a fine not exceeding R10 million
or to imprisonment not exceeding ten years or to
both such fine or
imprisonment.
[17]
All attempts by AMSA to convince the DDG that it was not subject to
the strictures of the ECA, the NEMA and the NEM:WA, because
those
Acts were enacted long after AMSA had been conducting its operations,
and seeking the withdrawal of the directive and compliance
notice
were unsuccessful. Undaunted by the DDG’s obdurate stance,
AMSA, on 6 January 2016, lodged an objection in respect
of the
compliance notice and an appeal against the directive to the
Minister. These legal avenues were available to AMSA under
ss 31M and
43 of the NEMA, respectively.
[18]
Although AMSA was in the process of decommissioning its existing
BOFSDS it was constrained to impugn the compliance notice
because it
feared that leaving it unchallenged would expose it to criminal
prosecution. In the event, on 5 July 2016, the Minister
dismissed the
appeal against the directive and the objection to the compliance
notice.
[19]
In the course of her written reasons for dismissing the appeal to the
DDG’s directive and objection to the compliance
notice, the
Minister noted that the directive and compliance notice sought to be
reversed by AMSA came about as a result of AMSA’s
failure to
comply with the dictates of NEMA and the impact of the environmental
degradation caused by the activities conducted
by AMSA at its
Newcastle operations. After setting out the factual context and
observing that AMSA had failed to effectively address
the concerns
raised by the DDG, she concluded that the appeal against the DDG’s
directive had to fail. With respect to the
compliance notice, the
Minister considered AMSA’s contentions that ‘current
arisings’ and ‘reclaimed BOF
slag’ were not waste
because at no stage were these by-products rejected, abandoned or
unwanted, and therefore did not constitute
waste as defined in
NEM:WA, as against the case advanced by the DDG. The case of the DDG
was that because AMSA no longer required
the BOF slag, this meant
that it was unwanted, rejected and abandoned as it was ‘no
longer wanted, used or needed’,
hence its disposal to third
parties. And, in addition, the fact that AMSA currently held a WML in
respect of its new slag facilities,
following the issuing of a
decommissioning licence in respect of its pre-existing disposal site,
was tantamount to an acknowledgment
that slag constituted ‘waste’
as defined in NEM:WA. Consequently, AMSA required WMLs for its
activities as did the
third parties to whom it sold its slag. In the
event, the objection relating to the compliance notice was similarly
dismissed.
[20]
Dissatisfied with the Minister’s decision, AMSA instituted
legal proceedings in the High Court for various orders against
the
appellants: (a) reviewing and setting aside her decision to dismiss
the appeal in terms of s 43(8) of NEMA against the directive
of the
DDG; (b) reviewing and setting aside her decision to dismiss the
objection lodged in terms of s 31M of NEMA against the
compliance
notice issued by the DDG under s 31L of NEMA; (c) reviewing and
setting aside the directive and compliance notice; and
(d) seeking
declaratory orders in relation to the BOF slag,
[7]
more particularly that its disposal, reclamation and sale of BOF slag
to third parties did not fall foul of NEMA and NEM:WA. The
Minister
and the DDG both deposed to affidavits opposing the relief claimed by
AMSA. Their versions are substantially to the same
effect. In
essence, they asserted that AMSA, having been issued with both a
decommissioning licence and a WML, was consequently
obliged to comply
with the conditions attaching to those licences and relevant
statutory prescripts.
The High Court
[21]
In its judgment, the High Court concluded that the decisions of both
the Minister and the DDG were ‘materially flawed
or influenced
by an error of law or fact’ and that on this ground the review
should therefore succeed.
[8]
With respect to the WMLs, the High Court agreed with the submission
advanced by counsel for AMSA that AMSA did not require a WML
in
respect of its old BOFSDS, which had been in existence prior to the
commencement of the ECA and, later, the NEM:WA. It found
that if the
Department sought to bring AMSA within the purview of the NEM:WA, the
Minister ought to have invoked her statutory
powers in terms of s
80(4)
[9]
of NEM:WA – which repealed parts of the ECA – and
regulation 7(1)
[10]
which is to the same effect. And this, she failed to do.
[22]
In the result, the High Court upheld AMSA’s review application
and granted orders
[11]
substantially in the terms sought in AMSA’s notice of motion.
However, the High Court, through what appears to be inadvertence,
omitted to grant an order reviewing and setting aside the DDG’s
directive and compliance notice to which the appeal and objection
to
the Minister related. This was notwithstanding the fact that AMSA had
explicitly sought such relief in its notice of motion.
In the
ordinary course, this would have meant that the directive and
compliance notice as issued by the DDG would remain of force
and
effect.
[12]
However, during the hearing before us, counsel for the parties were
agreed that the High Court’s omission was the type of
patent
omission contemplated in rule 42(1)
(b)
[13]
of the Uniform Rules of Court. Indeed, it is manifest from the tenor
of its judgment that the High Court was minded to review and
set
aside the compliance notice and directive. Accordingly, to the extent
necessary, this palpable omission falls to be rectified.
Thus, the
proposed correction will be reflected in the order to be issued by
this Court.
The statutory framework
[23]
It is apposite at this juncture to set out the statutory provisions
germane to the dispute between the antagonists. The ECA,
whose main
objective was to provide for the effective protection and controlled
utilization of the environment, came into operation
on 9 June 1989.
Section 21(1) of the ECA authorised the Minister, by notice in the
Government Gazette, to identify activities which
in his or her
opinion may have a substantial detrimental effect on the environment.
Subsection (2), in turn, lists the possible
categories of activities
contemplated under subsection (1). These include industrial processes
and chemical treatment.
[14]
[24]
Section 22(1) of the ECA prohibits any person (which includes
juristic persons) from undertaking an activity identified in
terms of
s 21(1) except by virtue of a written authorisation issued by the
Minister or a competent authority or local authority
or officer, as
designated by the Minister’s notice in the Gazette. AMSA
accepts that had it not been for the fact that its
Newcastle plant
had been operational since the 1970s, its activities there would have
required authorisation under section 22(1).
[25]
Section 28A empowers the Minister to exempt any person, local
authority or government institution from the provisions of any
regulation, notice or directive which was promulgated or issued in
terms of the ECA. And, on the other hand, s 29(4) provides that
any
person who contravened a provision of, amongst others, s 22(1) or
failed to comply with a condition of a permit, permission,
authorisation or directive issued or granted under this section
‘shall be guilty of an offence and liable on conviction to
a
fine not exceeding R5 million or to imprisonment for a period not
exceeding five years and in the case of second or subsequent
conviction, to a fine not exceeding R10 million or to imprisonment
for a period not exceeding 10 years or in both instances to
both such
fine and such imprisonment, and in addition to a fine not exceeding
three times the commercial value of any thing in
respect of which the
offence was committed.’
[26]
In deciding whether to grant or refuse authorisation in terms of s
22(1) of the ECA, the Minister or competent authority, or
local
authority or officer was required to have regard to the NEMA, which
came into operation on 29 January 1999. One of the stated
purposes of
the NEMA, in the context of environmental governance, is to establish
principles for decision-making on matters affecting
the environment
and the enforcement of environmental management laws. Consonant with
the dictates and spirit of s 24 of the Constitution,
two of those
principles impose a duty on environmental authorities to ensure that
‘pollution and degradation of the environment
are avoided, or,
where they cannot be altogether avoided, are minimised and
remedied’;
[15]
and that ‘waste is avoided, or where it cannot be altogether
avoided, minimised and “re-used” or “recycled”
where possible and otherwise disposed of in a responsible
manner’.
[16]
I have put the words ‘re-used’ and ‘recycled’
in inverted commas for reasons that will become more apparent
later.
The issues
[27] The issues raised in this appeal are:
(i) Did the Deputy Director-General: Legal,
Authorisations, Compliance and Enforcement act within the confines of
his statutory
powers in issuing his directive and compliance notice?
(ii) Was the Minister correct in dismissing AMSA’s
appeal against the DDG’s directive and objection to the DDG’s
compliance notice?
(iii) Was AMSA subject to the prescripts of the ECA, the
NEMA and the NEM:WA, having regard to the fact that AMSA commenced
with
its Newcastle operations long before the enactment of these
Acts?
(iv) Was AMSA required to obtain WMLs
under the NEM:WA for its activities in respect of its old BOF slag
disposal site undertaken
since the 1970s before the ECA, the NEMA and
the NEM:WA were enacted?
[28]
Before delving into the issues encapsulated in the preceding
paragraph it is necessary to make a preliminary observation. It
is
this. In the High Court there was debate as to whether s 20
[17]
of the ECA applied with retrospective effect. Section 80(1) of the
NEM:WA repealed, amongst others, s 20 of the ECA. Section 80(4)
of
the NEM:WA, in turn, provides:
‘
A person operating a waste disposal
facility that was established before the coming into effect of the
Environment Conservation
Act and that is operational on the date of
the coming into effect of this Act may continue to operate the
facility until such time
as the Minister, by notice in the Gazette,
calls upon that person to apply for a waste management licence.’
[29]
AMSA contended that s 20 of the ECA did not apply with retrospective
effect. For their part, the appellants contended for the
opposite.
However, before us, counsel for the appellants changed tack and
accepted that s 20 did not apply retrospectively. There
is, of
course, a legal presumption that new legislation is not intended to
be retroactive.
[18]
Therefore, the general rule is that a statute is, as far as possible,
to be interpreted as regulating occurrences that take place
after its
enactment. However, in view of the fact that this issue is no longer
in contention between the parties, nothing more
need be said on this
score.
[30] With the aspect relating to retrospectivity of s 20
of the ECA out of the way, it is now time to turn immediate focus to
the
crux of the dispute that precipitated this litigation. It will be
recalled that in invoking s 31L(1) of NEMA on 7 December 2015,
the
DDG believed that AMSA had not complied with the laws relating to the
protection of the environment. Section 31L(1) provides:
‘
An environmental management inspector,
within his or her mandate in terms of section 31D, may issue a
compliance notice in the prescribed
form and following a prescribed
procedure if there are reasonable grounds for believing that a person
has not complied—
(a)
with a
provision of the law for which that inspector has been designated in
terms of section 31D; or
(b)
with a term
or condition of a permit, authorisation or other instrument issued in
terms of such law.’
As
already mentioned, the compliance notice issued by the DDG required
AMSA, within 24 hours of the issuance of the notice, to cease
with
the disposal of waste into its BOFSDS until such time that the
Department agreed in writing that AMSA could recommence with
its
activities. On the other hand, the directive (as amended
subsequently) directed AMSA to immediately desist from selling BOF
slag to third parties unless those third parties were in possession
of WMLs or save where the Department agreed in writing to allow
AMSA
to supply or sell BOF slag to third parties subject to whatever
conditions that the Department may see fit to impose for such
sale or
supply.
[31] The invocation by the DDG of ss 28(4) and 31L(1) of
the NEMA necessitates a close look at what is meant by ‘waste’
as defined in the NEM:WA. This entails an interpretative exercise.
Section 1 of the NEM:WA defines ‘waste’ as:
‘
(a)
any
substance, material or object, that is unwanted, rejected, abandoned,
discarded or disposed of, or that is intended or required
to be
discarded or disposed of, by the holder of that substance, material
or object, whether or not such substance, material or
object can be
re-used, recycled or recovered and includes all wastes as defined in
Schedule 3 to this Act; or
(b)
any other
substance, material or object that is not included in Schedule 3 that
may be defined as a waste by the Minister by notice
in the Gazette,
but any waste or portion of waste, referred to in paragraphs
(a)
and
(b)
, ceases to be a waste—
(i) once an application for its re-use, recycling or recovery has
been approved or, after such approval, once it is, or has been
re-used, recycled or recovered;
(ii) where approval is not required, once a waste is, or has been
re-used, recycled or recovered;
(iii) where the Minister has, in terms of section 74, exempted any
waste or a portion of waste generated by a particular process
from
the definition of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any
waste stream or a portion of a waste stream from the definition
of
waste.’
Section 1 further defines ‘recycle’ to mean:
‘
[A] process where waste is reclaimed for
further use, which process involves the separation of waste from a
waste stream for further
use and the processing of that separated
material as a product or raw material’.
[32]
The principles of statutory interpretation are by now well-settled.
In
Natal Joint
Municipal Pension Fund v Endumeni Municipality
,
[19]
this Court authoritatively restated the proper approach to statutory
interpretation. This Court explained that statutory interpretation
is
the objective process of attributing meaning to words used in
legislation. This process, it emphasised, entails a simultaneous
consideration of ‘the language used in the light of the
ordinary rules of grammar and syntax; the context in which the
provision
appears; [and] the apparent purpose to which it is
directed’.
[20]
[33]
What the Constitutional Court said in
Cool
Ideas 1186 CC v Hubbard and Another
[21]
in the context of statutory interpretation is particularly apposite.
The Constitutional Court said (para 28):
‘
A fundamental tenet of statutory
interpretation is that the words in a statute must be given their
ordinary grammatical meaning,
unless to do so would result in an
absurdity. There are three important interrelated riders to this
general principle, namely:
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the relevant
statutory provision must be properly contextualised; and
(c)
all statutes
must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought
to be interpreted
to preserve their constitutional validity. This proviso to the
general principle is closely related to the purposive
approach
referred to in
(a)
.’
[22]
Against
this backdrop, I proceed to a consideration of the contentions of the
antagonists.
[34] Before I deal with what I see as the essential
dispute between the parties, there is a preliminary issue that bears
mentioning.
This issue has to do with two critical events that
occurred during 2011 which appear to have led the Department astray.
First,
on 28 July 2011, the Department issued a WML to AMSA under the
NEM:WA at the latter’s instance for the construction and
operation
of a new BOFSDS at the Newcastle operations. The WML was
granted to enable AMSA to: (a) dispose of any quantities of hazardous
waste to land; and (b) for the construction of facilities listed in
category B of the schedule to the licence. Second, on 29 September
2011 a decommissioning WML for AMSA’s existing BOFSDS was
issued. On 12 September 2016 this licence was revised to authorise
AMSA to reclaim BOF slag from its existing BOFSDS with a view to
decommissioning and rehabilitating the existing BOFSDS.
[35]
The appellants therefore contend that, pursuant to the issuance of
WMLs (decommissioning and construction) to AMSA during 2011,
the
latter was obliged, after 7 January 2016,
[23]
to dispose of its BOF slag into the new BOFSDS. This necessarily
entailed, so the argument proceeded, that AMSA was thenceforth
impelled to comply with the conditions of the two licences issued to
it and ultimately the prescripts of the NEMA and the NEM:WA.
[36]
As already indicated, the appellants accept that AMSA’s BOFSDS
at its Newcastle operations – that has been in existence
since
the 1970s – did not require a permit under s 20 of the ECA.
They also accept that the only statutory avenue that was
open to the
Minister, if she wished to bring AMSA within the parameters of the
NEM:WA (which repealed s 20 of the ECA), was to
invoke her powers
under s 80(4) of that Act and call upon AMSA, by notice in the
Gazette, to apply for a WML. Nevertheless, the
appellants assert that
the fact that the Minister did not invoke this statutory power is not
the end of the matter. Their primary
submission was that because AMSA
applied for and was issued with a decommissioning licence in respect
of its existing BOFSDS, and
a construction licence to build a new
BOFSDS, it thereby subjected itself to the dictates of the NEMA and
the NEM:WA. They also
argue that, inasmuch as AMSA had acknowledged
that it sold BOF slag to third parties, it was consequently dealing
with waste and
therefore required a WML to lawfully do so as required
by s 20 of the NEM:WA.
[24]
[37]
In elaboration, it was contended that ‘waste’ as defined
in the NEM:WA draws no distinction between ‘current
arisings’
and ‘reclaimed slag’. According to AMSA, ‘current
arisings’ is the slag that is immediately
sold to third parties
without first having been temporarily deposited into a BOFSDS. As to
‘reclaimed slag’ it was
argued that before its
reclamation BOF slag is disposed of into a BOFSDS to be reclaimed at
a later date. Therefore, so went the
argument, BOF slag remains waste
regardless of whether it is immediately sold to third parties or
temporarily deposited into a
BOFSDS before its reclamation for sale
to third parties.
[38]
For its part, AMSA argued that current arisings is not waste for at
least two reasons. First, it is not ‘a substance,
material or
object that is unwanted, rejected, abandoned or discarded’
within the meaning of ‘waste’ in s 1 of
the NEM:WA
because it is never deposited nor stored in a BOFSDS. And second,
because it has commercial value, hence it is sold
to third parties in
the agricultural and road construction sectors. As to reclaimed slag,
AMSA submitted that once BOF slag is
recovered from the BOFSDS –
where it is temporarily deposited because it could not be sold
immediately – and recycled,
it ceases to be waste if it meets
any one of the requirements of s 1
(b)
(i)
to (iv) of NEM:WA. Consequently, AMSA contended that it did not
require a WML in order to dispose of recycled BOF slag. Nor
were the
third parties to whom the BOF slag was sold required to have waste
disposal licences, since what they acquired from AMSA
was not waste
within the purview of s 1 of the NEM:WA.
[39]
At this juncture it would be of assistance, I think, to explain the
meaning of two terms employed by AMSA insofar as its BOF
slag is
concerned. These are: ‘current arisings’ and ‘reclaimed
BOF slag’. Whilst the NEM:WA speaks only
of waste and says
nothing about current arisings and reclaimed BOF slag, as correctly
submitted by counsel for the appellants,
it would appear that AMSA
has for its operational reasons coined the terms ‘current
arisings’, on the one hand, and
‘reclaimed BOF slag’
on the other. According to AMSA, ‘current arisings’
represents a slag stream that
is temporarily stockpiled before it is
crushed and screened to a client’s specification and dispatched
to customers for further
downstream use. On the other hand,
‘reclaimed BOF slag’ is slag that was temporarily
deposited into a BOFSDS and later
reclaimed by separating the BOF
slag from the dump. Thereafter it is similarly crushed and screened
to clients’ specification
and dispatched to customers for
further downstream use.
[40]
It will be observed that the essential difference between the two is
that the former is dispatched to customers without the
need first to
deposit it in the BOFSDS. On the other hand, the reclaimed BOF slag
is first deposited into the BOFSDS and, once
reclaimed therefrom, it
is recycled, processed and thereafter dispatched to customers for
use. Accordingly, these terms are employed
by AMSA to distinguish
between BOF slag that is sold immediately to third parties once it
has been prepared and packaged in accordance
with the specifications
of the third parties to whom it is sold and that BOF slag that is not
immediately sold but retained in
the BOFSDS for reclamation and
recycling at a later stage as and when demand therefor from third
parties arises. Thus, there is
nothing magical about these terms.
[41]
Reverting to the crux of the appeal, in my view, the contentions
advanced on behalf of AMSA have considerable force. The relevant
definition of ‘waste’ has already been quoted above.
[25]
Far from being obscure, the definition is clear and unequivocal. On a
fair reading thereof, it becomes readily apparent that any
substance,
material or object that is not ‘unwanted, rejected, abandoned,
discarded or disposed of’ does not fall within
the ambit of the
definition. Similarly, any substance, material or object that has
been recycled or recovered, in this instance
from the BOFSDS, ceases
to be waste once recycled or re-used. Consequently, AMSA’s
current arisings and reclaimed BOF slag
self-evidently fall outside
the terms of the definition of waste.
[42] Section 1 of the NEM:WA defines ‘recycle’
as:
‘
[A] process where waste is reclaimed for
further use, which process involves the separation of waste from a
waste stream for further
use and the processing of that separated
material as a product or raw material’.
The
NEMA, it will be recalled, seeks to protect the right of everyone to
an environment that is not harmful and protects the environment
from
degradation. To this end it provides in s 2(4)(iv) that
sustainable development must be balanced against the need to
avoid
waste or where waste cannot be altogether avoided or minimised, it
must be recycled. Thus, in recycling its waste, ie BOF
slag in the
form of what AMSA describes as reclaimed BOF slag, AMSA was in fact
promoting one of the principal objects of the NEMA,
that is, to
protect the environment from degradation.
[43]
Accordingly, the argument advanced on behalf of the appellants is
unsound for the following reasons. In the first place, as
the
appellants have been constrained to accept, AMSA’s Newcastle
operations from the 1970s were not subject to s 20 of the
ECA.
Second, the decommissioning licence granted to AMSA explicitly
provided that AMSA was authorised to decommission its existing
BOFSDS
and rehabilitate it. In order to give effect to this requirement, it
was necessary for AMSA to reclaim part of the material
deposited in
the BOFSDS, ie separate BOF slag from the dump in its BOFSDS, and
recycle it for sale to third parties in order to
seal and
rehabilitate the existing BOFSDS. It was with this in mind that AMSA
was, on 12 September 2016, through the amendment
of its
decommissioning licence explicitly authorised to reclaim BOF slag
from its existing BOFSDS in order to give effect to the
terms of the
licence.
[44]
Counsel for the appellants, whilst acknowledging that the clear
purpose of s 80(4) of the NEM:WA was to ‘legitimise a
waste
disposal site that [was] in operation’ before the coming into
effect of s 20 of the ECA (which s 80(1) repealed), nevertheless
submitted that s 80(4) was not open to a construction that makes it
possible for someone ‘to operate a facility, whilst the
[same]
person simultaneously holds a WML for a different waste management
activity’. It is not in dispute that AMSA continued
to operate
its existing BOFSDS whilst at the same time holding a WML for a new
site still to be constructed.
[45]
I consider this submission to be an over-simplification of the true
state of affairs. It is completely answered by the countervailing
argument advanced by counsel for AMSA. In essence, AMSA’s
argument boils down to the following. First, the decommissioning
and
construction licences had no bearing on AMSA’s existing rights
and entitlements as explicitly recognised by s 80(4) of
the NEM:WA.
Second, for as long as the new site was still under construction and
AMSA had not been granted permission to use the
new disposal site –
which was granted only in January 2016 – it was entitled to
continue using its existing BOFSDS
as before. To contend otherwise,
as the appellants sought to do, would have the effect of not only
defeating the purpose of s 80(4)
but also abruptly halting AMSA’s
operations for the duration of the construction of the new BOFSDS.
This cannot be. To read
s 80(4) in this way would undermine the
effectiveness of the NEM:WA. Moreover, to uphold the interpretation
for which counsel for
the appellants contends would run counter to
what this Court said was the proper approach to statutory
interpretation in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
[26]
namely that: ‘[a] sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines
the
apparent purpose of the document’.
[46]
For the sake of completeness, it bears mentioning that since AMSA’s
existing BOFSDS predates the coming into operation
of s 20 of the
ECA, the provisions of s 74
[27]
of the NEM:WA find no application. Section 74 could have had direct
application only if the Minister had invoked her powers under
s 80
(4)
of the NEM:WA. As already mentioned, it is common cause between the
parties that at no stage did the Minister exercise her powers
in
terms of this section. Therefore, the need for AMSA to apply for
exemption under s 74 did not arise.
[47]
For all the aforegoing reasons therefore I am driven to the
conclusion that all four of the questions posed in paragraph 27
above
must be answered in the negative. This conclusion ineluctably means
that the appeal in relation to this aspect must fail.
[48]
It remains to consider the appellants’ final argument in
relation to the declaratory order granted by the High Court.
In
essence, their argument on this score went like this. The High Court
was criticised for granting declaratory relief –
albeit far
more limited than what AMSA had sought in its notice of motion –
to AMSA. It was argued that that part of the
order was unwarranted,
having regard to the fact that AMSA had since been granted
decommissioning and construction licences. It
was contended that with
the old site having been rehabilitated and sealed as required by the
decommissioning licence and the new
waste disposal site having been
commissioned, the declaratory order sought and granted by the High
Court had become moot by the
time that the review was heard.
Consequently, argued counsel, it should have been refused.
[49] In elaboration, counsel submitted in their heads of
argument as follows:
‘
From 7 January 2016, AMSA on
its own version had to dispose BOF slag (waste) into the newly
constructed BOFSDS. In this regard,
the compliance notice clearly
relates to historical facts, which will have no legal effect or
consequence if reviewed and set aside.
Moreover, relief must be
effective’. In support of these submissions counsel relied on
Geldenhuys and
Neethling v Beuthin
[28]
and
Minister of Home
Affairs v National Institute for Crime Prevention and the
Re-Integration of Offenders (NICRO) and Others
.
[29]
[50]
The short answer to this submission lies in the counter argument
advanced on behalf of AMSA. Briefly stated, it is that the
grant of
declaratory relief by the High Court was fully justified and, in any
event, is not susceptible to interference on appeal
for at least two
reasons. First, the alleged transgressions identified by the DDG in
his compliance notice exposed AMSA to criminal
prosecution under the
relevant provisions of the NEM:WA. If established, AMSA would be
liable to heavy criminal sanctions with
far-reaching consequences.
Second, the grant of declaratory relief entails the exercise of a
narrow discretion. Thus, the grounds
upon which the exercise of such
a discretion can be interfered with on appeal are circumscribed. In
Gaffoor and Another
NNO v Vangates Investments (Pty) Ltd and Others
,
[30]
the distinction between a narrow discretion and a broad one was, with
reference to previous decisions, explained in these terms
(para 39):
‘
[T]he essence of “a discretion in the
narrow or strict sense” involves a choice between two or more
different, but equally
permissible, alternatives, while “a
discretion in the broad sense” means no more than a power to
have regard to a number
of disparate and incommensurable features in
arriving at a conclusion. It is only when the court exercises a
discretion in the
narrow or strict sense that an appeal court's
powers of interference are said to be limited. With regard to the
exercise of a discretion
in the broad sense, there is no reason why
the powers of an appeal court should be so restricted. Since these
matters can be determined
equally appropriately by an appeal court,
it may substitute its own discretion for that of the trial court if
it differs from such
court on the merits, and may make the order
which it deems just’
.
[31]
[51]
In
Giddey NO v JC
Barnard and Partners
,
[32]
the Constitutional Court aptly explained this principle in the
following terms (para 19):
‘
the ordinary approach on appeal to the
exercise of the discretion in the strict sense is that the appellate
court will not consider
whether the decision reached by the court at
first instance was correct, but will only interfere in limited
circumstances; for
example, if it is shown that the decision has not
been exercised judicially or has been exercised based on a wrong
appreciation
of the facts or wrong principle of law.’
And the judgment continued (para 22):
‘
It would not be appropriate for an
appellate court to interfere with that decision as long as it is
judicially made, on the basis
of the correct facts and legal
principles. If the court takes into account irrelevant considerations
or bases the exercise of its
discretion on wrong legal principles,
its judgment may be overturned on appeal. Beyond that, however, the
decision of the court
of first instance will be unassailable.’
[33]
[52]
For all the aforegoing reasons therefore the conclusion reached by
the High Court cannot be faulted.
[53] In the result the following order is made:
1 The appeal is dismissed with costs, including the
costs of two counsel.
2 The order of the High Court is supplemented to the
extent reflected below:
‘
The directive and compliance
notice issued by the Deputy Director-General: Legal, Authorisation,
Compliance and Enforcement on 7
December 2015 are reviewed and set
aside.’
________________________
X M PETSE
DEPUTY
PRESIDENT
Appearances
For
appellants: I Ellis SC (with her K Kollapen)
Instructed
by: State Attorney, Pretoria
State
Attorney, Bloemfontein
For
respondent: N H Maenetje SC (with him B L Makola)
Instructed
by: MacRobert Incorporated, Pretoria
Phatsoane
Henney Attorneys, Bloemfontein.
[1]
The High Court granted an order in the following terms:
‘1. The first respondent’s (“Minister”)
decision dated 5 July 2016, dismissing the applicant’s
appeal
lodged on 6 January 2016 in terms of section 43(8) of the National
Environmental Management Act 107 of 1998 (“NEMA”)
against the directive issued by the second respondent against the
applicant in terms of section 28(4) of the NEMA dated 7 December
2015, is reviewed and set aside;
2. The Minister’s decision dated 5 July 2016, dismissing
AMSA’s objection lodged on 6 January 2016 in terms of section
31M of the NEMA against the compliance notice issued by the DDG
against the applicant in terms of section 31L of the NEMA dated
7
December 2015 (“compliance notice”) is reviewed and set
aside;
3. A declaratory order that the existing Basic Oxygen Furnace
(“BOF”) slag disposal site which the applicant operated
since the late 1970s, did not require a disposal waste management
licence in terms of the National Environmental Management Waste
Act
59 of 2008 (“NEM:WA”) for its lawful operation;
4. The respondents to pay the costs of this application, including
the costs of two counsel, jointly and severally, the one paying
the
other to be absolved.’
[2]
Some of these objectives are either echoed or elaborated on in s 2.
[3]
Section 31H reads:
‘
General powers.
(1) An environmental management inspector, within his or her mandate
in terms of section 31D, may—
(a)
question a person about any act or omission in respect of
which there is a reasonable suspicion that it might constitute—
(i) an offence in terms of a law for which that inspector has been
designated in terms of that section;
(ii) a breach of such law; or
(iii) a breach of a term or condition of a permit, authorisation or
other instrument issued in terms of such law;
(b)
issue a written notice to a person who refuses to answer
questions in terms of paragraph
(a)
, requiring that person to
answer questions put to him or her in terms of that paragraph;
(c)
inspect, or question a person about, any document, book
or record or any written or electronic information—
(i) which may be relevant for the purpose of paragraph
(a)
;
or
(ii) to which this Act or a specific environmental management Act
relates;
(d)
copy, or make extracts from, any document, book or record
or any written or electronic information referred to in paragraph
(c)
, or remove such document, book, record or written or
electronic information in order to make copies or extracts;
(e)
require a person to produce or deliver to a place
specified by the inspector, any document, book or record or any
written or
electronic information referred to in paragraph
(c)
for inspection;
(f)
inspect, question a person about, and if necessary remove
any specimen, article, substance or other item which, on reasonable
suspicion, may have been used in—
(i) committing an offence in terms of the law for which that
inspector has been designated in terms of section 31D;
(ii) breaching such law; or
(iii) breaching a term or condition of a permit, authorisation or
other instrument issued in terms of such law;
(g)
take photographs or make audio-visual recordings of
anything or any person that is relevant for the purposes of an
investigation
or for a routine inspection;
(h)
dig or bore into the soil;
(i)
take samples;
(j)
remove any waste or other matter deposited or discharged
in contravention of the law for which that inspector has been
designated
in terms of section 31D or a term or condition of a
permit, authorisation or other instrument issued in terms of such
law; or
(k)
carry out any other prescribed duty not inconsistent with
this Act and any other duty that may be prescribed in terms of a
specific
environmental management Act.
(2) A written notice issued in terms of subsection (1)
(b)
must be in the prescribed format and must require a person to answer
specified questions either orally or in writing, and either
alone or
in the presence of a witness, and may require that questions are
answered under oath or affirmation.
(3) A person who receives a written notice in terms of subsection
(1)
(b)
, must answer all questions put to him or her
truthfully and to the best of his or her ability, notwithstanding
that an answer
might incriminate him or her, but any answer that
incriminates such person may not be used against him or her in any
subsequent
criminal proceedings for an offence in terms of this Act
or a specific environmental management Act.
(4) An environmental management inspector must—
(a)
provide a receipt for—
(i) any document, book, record or written or electronic information
removed in terms of subsection (1)
(d)
; or
(ii) any specimen, article, substance or other item removed in terms
of subsection (1)
(f)
; and
(b)
return anything removed within a reasonable period or,
subject to section 34D, at the conclusion of any relevant criminal
proceedings.
(5) In addition to the powers set out in this Part, an environmental
management inspector must be regarded as being a peace officer
and
may exercise all the powers assigned to a peace officer, or to a
police official who is not a commissioned officer, in terms
of
Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977 (Act No
51 of 1977)–
(a)
to comply with his or her mandate in terms of section
31D; and
(b)
within the area of jurisdiction for which he or she has
been designated.’
[4]
Section 31L reads:
‘
Power to issue compliance notices.
(1) An environmental management inspector, within his or her mandate
in terms of section 31D, may issue a compliance notice in
the
prescribed form and following a prescribed procedure if there are
reasonable grounds for believing that a person has not
complied—
(a)
with a
provision of the law for which that inspector has been designated in
terms of section 31D; or
(b)
with a term
or condition of a permit, authorisation or other instrument issued
in terms of such law.
(2) A compliance notice must set out—
(a)
details of
the conduct constituting noncompliance;
(b)
any steps
the person must take and the period within which those steps must be
taken;
(c)
anything
which the person may not do, and the period during which the person
may not do it; and
(d)
the
procedure to be followed in lodging an objection to the compliance
notice with the Minister or MEC, as the case may be.
(3) An environmental management inspector may, on good cause shown,
vary a compliance notice and
extend the period within which the person must comply with the
notice.
(4) A person who receives a compliance notice must comply with that
notice within the time period stated in the notice unless
the
Minister or MEC has agreed to suspend the operation of the
compliance notice in terms of subsection (5).
(5) A person who receives a compliance notice and who wishes to
lodge an objection in terms of section 31M may make representations
to the Minister or MEC, as the case may be, to suspend the operation
of the compliance notice pending finalisation of the objection.’
[5]
Section 28(4) reads:
‘
(4) The DirectorGeneral, the
DirectorGeneral of the department responsible for mineral
resources or a provincial head
of department may, after having given
adequate opportunity to affected persons to inform him or her of
their relevant interests,
direct any person who is causing, has
caused or may cause significant pollution or degradation of the
environment to—
(a)
cease any
activity, operation or undertaking;
(b)
investigate,
evaluate and assess the impact of specific activities and report
thereon;
(c) commence taking specific measures before a given date;
(d)
diligently
continue with those measures; and
(e)
complete
those measures before a specified reasonable date:
Provided that the DirectorGeneral or a provincial head of
department may, if urgent action is necessary for the protection
of
the environment, issue such directive, and consult and give such
opportunity to inform as soon thereafter as is reasonable.’
[6]
Paragraph 11.3 of the notice in its amended form read:
‘Immediately cease with the selling of the slag emanating from
the BOF to outside companies, unless proof that said companies
are
in possession of a WML and/or until such time as the Department
agrees to whom and in what manner of the selling of BOF slag
will be
condoned. Provide the Department with a list of companies that your
BOF slag has been sold to this far, within seven
(7) working days’.
[7]
The relevant declaration orders sought are encapsulated in
paragraphs 5, 6, 7 and 8 of AMSA’s notice of motion and read:
‘5 Declaring that the existing Basic Oxygen Furnace (“BOF”)
Slag disposal site, which the Applicant has operated
since the late
1970’s, did not require a disposal waste management licence in
terms of the National Environmental Management:
Waste Act 59 of 2008
(“NEM:WA”) for its lawful operation;
6 Declaring that the reclamation, crushing and screening of the BOF
Slag at the Newcastle Operations of the Applicant for purposes
of
sale to downstream users, constitutes “
recycling”
in terms of the NEM:WA and the BOF slag, once crushed and screened,
no longer constitutes “
waste”
as defined in the
NEM:WA;
7 Declaring that the reclamation, crushing and screening activities
at the Newcastle Operations of the Applicant do not currently
require a waste management licence in terms of the NEM:WA.’
[8]
Arcelormittal South Africa Limited v Minister
of Environmental Affairs and Another
[2018] ZAGPPHC 577; 2018 JDR 0957 (GP) para 53.
[9]
Section 80, which is headed ‘Repeal and
amendment of laws, and savings’, provides in subsection (4)
that:
‘
A person operating a waste disposal
facility that was established before the coming into effect of the
Environment Conservation
Act and that is operational on the date of
the coming into effect of this Act may continue to operate the
facility until such
time as the Minister, by notice in the Gazette,
calls upon that person to apply for a waste management licence.’
[10]
Regulation 7(1), which is to the same effect,
reads:
‘
A person who lawfully conducts a waste
management activity listed in this Schedule on the date of the
coming into effect of this
Notice may continue with the waste
management activity until such time that the Minister by notice in a
Gazette calls upon such
a person to apply for a waste management
licence.’
For the regulations, see GN R 921 in
GG
37083 of 29-11-2013.
[11]
The order granted by the High Court reads:
‘1. The first respondent’s (“Minister”)
decision dated 5 July 2016, dismissing the applicant’s
(“AMSA”) appeal lodged on 6 January 2016 in terms of
section 43(8) of the National Environmental Management Act 107
of
1998 (“NEMA”) against the directive issued by the second
respondent against the applicant in terms of section
28(4) of the
NEMA dated 7 December 2015, is reviewed and set aside;
2. The Minister’s decision dated 5 July 2016, dismissing
AMSA’s objection lodged on 6 January 2016 in terms
of section
31M of the NEMA against the compliance notice issued by the DDG
against the applicant in terms of section 31L of the
NEMA dated 7
December 2015 (“compliance notice”) is reviewed and set
aside;
3. A declaratory order that the existing Basic Oxygen Furnace
(“BOF”) slag disposal site which the applicant
operated
since the late 1970s, did not require a disposal waste management
licence in terms of the National Environmental Management
Waste Act
59 of 2008 (“NEM:WA”) for it lawful operation;
4. The respondents to pay the costs of this application,
including the costs of two counsel, jointly and severally, the
one
paying the other to be absolved.’
[12]
MEC for Health, Eastern Cape and Another v Kirkland Investments
(Pty) Ltd t/a Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3)
SA 481
(CC) paras 105-106. See also
Wings Park Port Elizabeth
(Pty) Ltd v MEC, Environmental Affairs, Eastern Cape and Others
2019 (2) SA 606
(ECG) para 34. And compare
Sewpersadh v The
Minister of Finance and Another
[2019] ZASCA 117
;
[2019] 4 All
SA 668
(SCA) para 20.
[13]
Rule 42(1)
(b)
in material parts reads:
‘
(1) The court may, in addition to any
other powers it may have,
mero motu
or upon the application of any party affected, rescind or vary:
…
(b)
an order or
judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity,
error or
omission;
…’
[14]
Section 21(2)
(f)
and
(j)
, respectively.
[15]
Section 2(4)(ii).
[16]
Section 2(4)(iv).
[17]
Section 20(1) of the ECA read:
‘
No
person shall establish, provide or operate any disposal site without
a permit issued by the Minister of Water Affairs and except
subject
to the conditions contained in such permit.’
[18]
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para 65.
[19]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13; 2012 (4)
SA 593 (SCA).
[20]
Para 18.
[21]
Cool Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16; 2014 (4) SA 474 (CC).
[22]
(Citations omitted.)
[23]
7 January 2016 is the date on which the Department granted AMSA
permission to use the newly constructed BOFSDS.
[24]
Section 20, which is headed ‘Consequences
of listing waste management activities’, replicates the
repealed s 20 of
the ECA and reads:
‘
No person may commence, undertake or
conduct a waste management activity, except in accordance with—
(a)
the
requirements or standards determined in s 19(3) for that activity;
or
(b)
a waste
management license issued in respect of that activity, if a licence
is required.’
[25]
See para 31 above.
[26]
Natal Joint Municipal Pension Fund
op
cit fn 16 para 18.
[27]
Section 74,headed ‘Applications for exemption’, reads as
follows:
‘(1) Any person may apply in writing for exemption from the
application of a provision of this Act to the Minister or,
where the
MEC is responsible for administering the provision of the Act from
which the person or organ of state requires exemption,
to the MEC.
(2) An application in terms of subsection (1) must be accompanied
by—
(a)
an explanation of the reasons for the application;
and
(b)
any applicable supporting documents.’
[28]
Geldenhuys and Neethling v Beuthin
1918 AD 426
at 441.
[29]
Minister of Home Affairs v National Institute
for Crime Prevention and the Re-Integration of Offenders (NICRO) and
Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5)
BCLR 445
(CC) para 74.
[30]
Gaffoor and Another NNO v Vangates Investments
(Pty) Ltd and Others
[2012] ZASCA 52;
2012 (4) SA 281 (SCA).
[31]
(Citations omitted.) See further, in this regard,
Competition Commission v Hosken
Consolidated Investments Ltd and Another
[2019] ZACC 2
;
2019 (3) SA 1
(CC) paras 74-88;
Cordiant
Trading CC v Daimler Chrysler Financial Sevices (Pty) Ltd
[2005] ZASCA 50
;
2005 (6) SA 205
(SCA) paras 17-18; and
Rumdel
Construction (Cape) (Pty) Ltd v South African National Roads Agency
SOC Ltd
[2016] ZASCA 23
; 2016 JDR 0512
(SCA) paras 15-16
[32]
In
Giddey NO v JC
Barnard and Partners
[2006] ZACC 13;
2007 (2) BCLR 125 (CC); 2007 (5) SA 525 (CC).
[33]
(See further, in this regard,
Competition
Commission v Hosken Consolidated Investments Ltd and Another
2019 (3)SA 1 (CC) paras 74-88;
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6)SA 205 (SCA) paras 17-18;and
Rumdel
Construction (Cape) (Pty) Ltd v South African National Roads Agency
SOC Ltd
2016 JDR 0512 (SCA) paras
15-16.)