An amendment to the National Environmental Management: Waste Act 2008 in the National Environmental Laws Amendment Act 2022 was declared invalid and unconstitutional because the State had failed to comply with its constitutional obligations to facilitate public involvement in the legislation.
The legislative process to amend the Waste Act began in 2015. The initial amendment was subject to public hearings where comments and representations were made by a range of stakeholders leading to a major amendment to the definition of “waste” and other material changes in the amending law. A new version of the Bill included basic oxygen furnace slag as “waste” which all courts who heard the matter agreed was not “waste” as it is not “unwanted, rejected, abandoned, discarded or disposed of”. The slag has several commercial uses including in road construction and in the agricultural sector to conditions soils. These amendments were passed without further public consultation despite not having been in the original Bill and despite objections when first published.
South Africa is a constitutional democracy that upholds representative and participatory democracy. The purpose of public participation and involvement in democratic processes is primarily to influence decision-making processes that affect the will of the people. Those who are affected by a decision have a right to be involved in the decision-making process by the government institutions making the decisions. As a bill progresses through different stages, the public must be informed and consulted. When deciding whether the final version of a bill is a material amendment of previous versions or not, the two versions will be compared within the scope of the act being amended. In the present case, on a plain reading of the two definitions of “waste”, they were remarkably different and the revised law was far more expansive, including new definitions of “waste”, of “commercial value” and of “trade in”, and transitional provisions. A vast range of products, co-products and by-products that were never previously regulated would now be subject to the onerous provisions of the Waste Act with significant consequences including criminal penalties and material commercial implications for producers and customers.
The materiality of the proposed changes triggered the need for further participation but the government did not call for further submissions from the public. The standard for adequate participation is one of reasonableness. A reasonable opportunity must be offered to members of the public and all interested parties to know about the issues and have an adequate say. In the present matter there was no evidence of any measures taken by the government to bring the public’s attention to the proposed amendments and public views were simply brushed aside and ignored during the later stages of the Bill’s progress. The consultation requirements are in sections 59(1)(a) and 72(1)(a) of the Constitution, as interpreted by the Constitutional Court since 2006. The court declared certain of the provisions referred to above invalid and unconstitutional.
It seems unnecessary for the matter to have been delayed since 2018 and to have gone through the courts till now instead of the government following a relatively short consultation process.