Brief Summary

Constitutional Law — Legislative Process — Validity of Presidential Decision to Publish Act — The President of South Africa published an Act of Parliament without the accompanying regulations, which led to a challenge by Aquarius Platinum (SA) (Pty) Ltd, asserting that the decision was irrational. The High Court declared the President's decision invalid. The Constitutional Court held that the publication of the Act was validly executed as the Constitution permits publication prior to the establishment of regulations, thus upholding the appeal and setting aside the High Court's order.

Comprehensive Summary

Summary of Judgment

Introduction

This matter concerned constitutional review and appellate proceedings arising from a High Court order declaring invalid the President of the Republic of South Africa’s decision to publish an Act of Parliament after assenting to and signing it. The dispute turned on whether that publication decision was irrational because relevant implementing regulations had not yet been promulgated.

The parties who remained active before the Constitutional Court were the Minister for Environmental Affairs and the Department of Environmental Affairs (as appellants). The original High Court proceedings had been instituted by Aquarius Platinum (SA) (Pty) Ltd (Aquarius) against, among others, the President, the Minister of Environmental Affairs, and other members of the executive. Although cited, the Minister of Water and Sanitation and the Director-General: Department of Water and Sanitation did not participate in the Constitutional Court proceedings, as the portion of the High Court case concerning the water licence was postponed and did not form part of the confirmation/appeal process in this Court. The President and the Minister of Mineral Resources did not participate in either court.

In the High Court (Gauteng Division, Pretoria), Aquarius obtained an order reviewing and setting aside the President’s publication of the National Environmental Management Laws Amendment Act 25 of 2014 (the Environmental Amendment Act / NEMLAA), on the basis that publication occurred before the regulations necessary to implement certain amendments had been made. Because the High Court declared invalid conduct of the President, its order required confirmation by the Constitutional Court under the Constitution. The Minister for Environmental Affairs and her Department exercised the constitutional right of appeal against such an order.

While the matter was pending before the Constitutional Court, Aquarius withdrew from the confirmation proceedings and the appeal, after the Minister published the relevant regulations in July 2015. Nonetheless, the Court proceeded to determine whether the High Court order should be confirmed, because confirmation jurisdiction is triggered by the Constitution and is not dependent on the parties’ continued participation. At the Court’s request, Mr Leon Bekker (previously counsel for Aquarius) assisted as amicus curiae.

The general subject-matter concerned the constitutional and statutory mechanics of law-making, specifically the relationship between presidential publication under section 81 of the Constitution, statutory commencement provisions, and the rationality standard applicable to the exercise of executive power.

Material Facts

Aquarius operated a mining business at Kroondal in the North West Province. Its mining operations produced tailings that, in terms of the applicable legal framework, had to be stored in prescribed facilities to protect the environment. When Aquarius’s storage dams were filling, it sought to create a new facility described as the West-West Pit. To do so it required statutory authorisations from different departments, including a water licence, an environmental authorisation, and ministerial approval to construct and operate the storage facility.

It was common cause that Aquarius obtained an environmental authorisation in March 2013 under the National Environmental Management Act 107 of 1998, and permission from the Minister of Mineral Resources in June 2013 under the Mineral and Petroleum Resources Development Act 28 of 2002. It was also common cause that the Department of Water and Sanitation did not decide the water licence application, which led Aquarius to launch High Court proceedings in October 2014; however, that portion of the litigation was postponed and was not before the Constitutional Court.

In parallel, Parliament enacted two amendment statutes intended to streamline requirements for authorisations and to introduce new requirements for managing mining tailings. These were the National Environmental Management Laws Amendment Act 25 of 2014 and the National Environmental Management: Waste Amendment Act 26 of 2014. The amendments required that certain “residue stockpiles and residue deposits” be managed in a prescribed manner, and contemplated that the manner of management would be prescribed by regulations to be made by the Minister responsible for administering the National Environmental Management: Waste Act 59 of 2008.

After Parliament passed the two amendment Acts, the President assented to and signed them, and both were published on 2 June 2014 in the Government Gazette. The gazette notices stated that the Acts were published “for general information” and did not specify a commencement date. The Environmental Amendment Act contained a specific commencement provision: it would come into effect three months from the date of publication.

It was undisputed that on the expiry of three months from 2 June 2014, the Environmental Amendment Act came into operation in September 2014, at a time when the regulations needed to implement some of its provisions were still not in existence. The Court accepted that this created uncertainty because the new Act repealed certain pre-existing provisions when it commenced, while the replacement scheme could not fully operate without the regulations.

Aquarius’s challenge in the High Court proceeded on the premise that the President should not have published the Environmental Amendment Act without ensuring that the implementing regulations were already in place. It was also a material feature of the litigation that the Minister for Environmental Affairs, though cited, did not file opposing affidavits explaining why the regulations were not made before the Act commenced, and the President did not participate. While the matter was pending in the Constitutional Court, the Minister published the relevant regulations on 24 July 2015, almost a year after the Act had come into force.

Legal Issues

The central legal question was whether the President’s decision to publish the Environmental Amendment Act was irrational, and thus constitutionally invalid, because publication occurred when the supporting regulations necessary for implementation were not yet in place.

The dispute primarily concerned the application of constitutional legality/rationality principles to an executive act, and depended on a legal interpretation of the statutory commencement scheme in section 32 of the Environmental Amendment Act, read with section 81 of the Constitution. The Court treated the question as one of law and the application of law to largely common-cause facts, rather than a factual dispute requiring credibility findings.

A further interpretive issue was whether section 32 imposed (expressly or by implication) a duty on the President to ensure the regulatory framework existed before publication, and whether publication under section 81 necessarily entails a decision “to bring the Act into force” in circumstances where the Act’s commencement is delayed by a fixed period from publication.

Court’s Reasoning

The Court situated the dispute within the constitutional process for legislation. It emphasised that Parliament holds the legislative power and that a Bill becomes an Act only once the President has assented to and signed it. Section 81 of the Constitution then requires that an Act “must be published promptly” and regulates when the Act takes effect, either upon publication or on a date determined in terms of the Act. The Court treated publication as a peremptory step following assent and signature, and noted that publication can occur irrespective of whether commencement is immediate or delayed.

In dealing with rationality, the Court drew on constitutional legality principles articulated in prior authority, particularly decisions where the President had brought legislation into force when it was not practically implementable. The Court reiterated that where the President is empowered to determine a commencement date (for example by proclamation), that power is conferred for a specific purpose—to put the Act into operation—and must be exercised in a way that is rationally connected to that purpose. In those circumstances, rationality requires that the President satisfy himself that it is appropriate to bring the Act into force, which may include considering whether required regulations are in place.

However, the Court held that this general duty does not arise in the same way in every case of publication. The decisive step in its analysis was the interpretation of section 32 of the Environmental Amendment Act. Section 32 did not authorise the President to choose or proclaim the commencement date. Instead, Parliament itself determined the commencement mechanism: the Act would come into effect three months from the date of publication. The Court treated publication under section 32 as serving a “dual purpose”: informing the public and establishing a reference date from which the three-month period is calculated.

On this interpretation, the Court concluded that the President’s publication decision was not the same kind of decision as “bringing an Act into force immediately” or “determining the date of commencement.” Publication on 2 June 2014 did not itself cause the Act to commence; it merely started the three-month period chosen by Parliament. The Court reasoned that, properly construed, section 32 contemplated that publication may precede the making of regulations, because the three-month delay period existed to allow time for the necessary regulatory work to be done.

The Court also explained that, absent express terms, a duty to assess whether it is appropriate to bring an Act into operation arises in only three situations: where the Act authorises the President to determine commencement; where the Act provides that it comes into force on publication; or where the Act is silent and the section 81 default position applies (which results in commencement upon publication). In the latter two instances, publication itself brings the Act into operation, and the purpose of publication is therefore to trigger commencement. Section 32 fell outside these categories because commencement was fixed by Parliament at three months after publication, not on publication.

The Court considered it material that the President had no apparent reason to assume that the regulations would not be made within the three-month period. In the Court’s view, Parliament’s decision to postpone commencement by three months was directed precisely at providing sufficient time for the Minister to make the regulations. The Court described it as inconceivable that the three-month period was fixed without the Minister’s input, and held that it was not irrational for the President to proceed on the basis that the regulatory framework could be completed before the Act came into effect.

Having found that the statutory scheme did not require regulations to pre-exist publication, and that publication could rationally occur before regulations were made, the Court held that the High Court erred in concluding that the President’s publication was irrational.

Although not necessary to the central holding, the Court addressed responsibility for the regulatory gap. It attributed the fault for the hiatus created when the Act commenced without supporting regulations to the Minister for Environmental Affairs, who was mandated to make the regulations within the three-month period and gave no explanation for failing to do so. The Court expressed concern that the omission had implications for constitutional compliance and the rule of law, noting that the Minister had constitutional obligations related to environmental protection and, when it became clear that regulations would not be ready in time, could have taken steps to avoid the lacuna (including seeking judicial relief), as had occurred in earlier precedent.

Outcome and Relief

The Constitutional Court upheld the appeal. It set aside the High Court’s order and replaced it with an order dismissing Aquarius’s application challenging the President’s publication decision.

The Court’s final order did not make a costs order. The High Court’s costs order, which had awarded Aquarius a portion of its costs, fell away with the setting aside and replacement of the High Court order.

Cases Cited

Aquarius Platinum (SA) (Pty) Ltd v Minister of Water and Sanitation and Others [2015] ZAGPPHC 584.

Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

Kruger v President of the Republic of South Africa and Others [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 24, 42, 43, 73, 79, 81, 172(2)(d)).

National Environmental Management Act 107 of 1998.

Mineral and Petroleum Resources Development Act 28 of 2002.

National Environmental Management: Waste Act 59 of 2008.

National Environmental Management Laws Amendment Act 25 of 2014.

National Environmental Management: Waste Amendment Act 26 of 2014.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Court held that the President’s decision to publish the National Environmental Management Laws Amendment Act 25 of 2014 on 2 June 2014 was not irrational, notwithstanding that implementing regulations were not yet in place at the time of publication. Properly interpreted, section 32 of the Act fixed commencement as three months after publication, meaning publication did not itself bring the Act into force and could occur before the regulations were made.

The Court held that the High Court erred in treating the publication as a premature and irrational act equivalent to bringing the legislation into operation immediately. The appeal was upheld and the High Court order reviewing and setting aside publication was replaced with an order dismissing the application.

LEGAL PRINCIPLES

The judgment applied the constitutional principle of legality, including the requirement that exercises of public power must satisfy objective rationality, meaning the decision must be rationally connected to the purpose for which the power was conferred.

Where a functionary is empowered to bring legislation into force, particularly by determining a commencement date, that power is coupled with a duty to decide whether it is appropriate to commence the legislation, taking account of relevant factors which may include the existence of necessary implementing measures such as regulations. A decision to commence legislation when it cannot be implemented may fail the rationality standard.

The judgment distinguished between publication that itself triggers commencement (including where an Act comes into force on publication or where the Act is silent and the constitutional default applies) and publication that serves as a reference point for a commencement date determined by Parliament. Where Parliament sets commencement at a future date calculated from publication (as in section 32, providing for commencement three months after publication), the publication decision is not, without more, a decision to bring the Act into immediate operation, and rationality does not require the President to ensure that regulations already exist at the time of publication.

Section 81 of the Constitution was treated as imposing a peremptory requirement that an Act assented to and signed must be published promptly, and publication may occur even where commencement is delayed, because publication and commencement are not necessarily co-extensive under the constitutional scheme.

Minister for Environmental Affairs and Another v Aquarius Platinum (SA) (Pty) Ltd and Others (CCT102/15) [2016] ZACC 4; 2016 (5) BCLR 673 (CC) (23 February 2016)