1.1 Introduction

The purpose of this Section is to describe the context within which the National Waste Management Strategy (NWMS) has been developed. This includes the methodology followed in developing the NWMS, the legislative context that frames the development of the NWMS, and a problem statement which the NWMS seeks to address.

This NWMS seeks a common platform for action between stakeholders to systematically improve waste management in South Africa. The country is faced with a rapidly growing, urbanisation and consumerist population but our environment has a finite ability to absorb solid and liquid waste.

Through the country's commitment to sustainable development, South Africa aims to balance the broader economic and social challenges of a developing and unequal society while protecting our environmental resources. There is a need to eliminate the unnecessary use of raw materials and the need to support sustainable product design, resource efficiency and waste prevention. This means re-using products where possible; and recovering value from products when they reach their life span through recycling, composting or energy recovery. While the elimination of waste in its entirety may not be feasible, it is possible through the systematic application of the waste management hierarchy to reach a point within the next few decades where, re-use, recycling, recovery and treatment overtake landfills as preferred options for waste management.

The NWMS is a legislative requirement of the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008), here after referred to as the "Waste Act". The purpose of the NWMS is to achieve the objects of the Waste Act, which defines its scope and specifies its contents. Organs of state and affected persons are obliged to give effect to the NWMS.

The Waste Act indicates that the Minister must review the strategy at intervals of not more than five years. While the period that the strategy covers is not specified, the bulk of its provisions will relate to the five year period prior to the next review of the strategy.

The NWMS consists of five sections, each containing a number of sub-sections:

1. Section One describes the methodology followed in developing the NWMS, establishes the legislative context framing the NWMS, and sets out the challenges facing the management of waste.
2. Section Two sets out the overall goals and approach to implementing the NWMS, and the strategies to be followed to achieve each of the goals.
3. Section Three describes each of the regulatory and economic instruments that will be used to give effect to the strategy set out in Section Two.
4. Section Four deals with institutional mechanisms for implementing the NWMS, and sets out the roles, responsibilities, coordination and review mechanisms.
5. The last section is an action plan that sets out how the three spheres of government and industry will give effect to the NWMS is in Appendix One.

1.2 Approach and methodology

The development of the NWMS has been guided by a consultative process⁴, including public participation and consultation with relevant national and provincial departments. Involving stakeholders in the process has been more than merely a legislative requirement, since crucial aspects of waste management, such as waste separation and recycling, are performed by households, businesses and organisations outside of government.

Developing the strategy followed a consultative process in four phases shown in the table below.

Table 2: Phases for developing the NWMS

An innovative feature of the consultation process has been a website (www.wastepolicy.co.za/nwms/) to facilitate public participation and comments on the key policy documents produced as part of the drafting of the NWMS.

Consultation with government departments, provinces and municipalities has ensured that the NWMS is an integrated strategy for the whole of government, and is aligned with institutional capacity and intergovernmental systems. The NWMS seeks to mainstream waste management in government planning and reporting systems.

4. As required by sections 72 and 73 of the Waste Act.

1.3 Constitutional and legal framework

The Constitution of South Africa, 1996 (the Constitution) provides the foundation for environmental regulation and policy in South Africa. The right to environmental protection and to live in an environment that is not harmful to health or well-being is set out in the Bill of Rights (section 24 of Chapter 2). This fundamental right underpins environmental policy and law, in particular the framework environmental legislation established by the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA).

The Waste Act fundamentally reforms the law regulating waste management, and for the first time provides a coherent and integrated legislative framework addressing all the steps in the waste management hierarchy. The waste management hierarchy provides a systematic and hierarchical approach to integrated waste management, addressing in turn waste avoidance, reduction, re-use, recycling, recovery, treatment, and safe disposal as a last resort.

NEMA introduced a number of additional guiding principles into South African environmental legislation, including the life-cycle approach to waste management, producer responsibility, the precautionary principle and the polluter pays principle. Chapter 5 of NEMA provides instruments for integrated waste management. NEMA also places a duty of care on any persons who may cause significant pollution or degradation of the environment, requiring them to institute measures to either prevent pollution from occurring, or to minimise and rectify the pollution or degradation where it cannot reasonably be avoided. The Waste Act echoes the duty of care provision by obliging holders of waste to take reasonable measures to implement the waste management hierarchy.

The Constitution assigns concurrent legislative competence to national and provincial government with respect to the environment and pollution control (section 146 of the Constitution). It assigns exclusive provincial legislative competence to the local government matters of cleansing and refuse removal, refuse dumps and solid waste disposal. The Constitution allows national legislation to set national norms and standards relating to these matters in cases where national uniformity is required to deal effectively with the issue.

Norms and standards are therefore the foundation of the regulatory system established by the Waste Act. The Waste Act obliges national government to develop norms and standards on key regulatory matters, while it may develop additional norms and standards on certain ancillary matters. Provinces and municipalities may also develop standards provided they do not conflict with national standards.

The Waste Act needs to be read in conjunction with the body of legislation that regulates local government, including the Municipal Finance Management Act, 2003, and the Municipal Systems Act, 2000, which create the overall framework for planning, budgeting, service delivery and reporting at local government level.

The Waste Act establishes cooperative governance mechanisms for dealing with matters such as waste planning, designation of waste management officers and performance reporting. National and provincial government departments are also constitutionally obliged to support municipalities in the execution of their functions.

The Waste Act also needs to be read in conjunction with other sectoral legislation. For example, the Minerals and Petroleum Resources Development Act, 2002 section 39(3)(iii) states that Environmental Management Plans must comply with any prescribed waste standard or management standards or practices.

The Waste Act does not apply to areas that are regulated by their sectoral legislation, including: radioactive waste⁵, residue deposits and residue stockpiles⁶; the disposal of explosives⁷; and the disposal of animal carcasses⁸.

5. Radioactive Waste regulated by the: Hazardous Substances Act, 1973 (Act No. 15 of 1973), the National Nuclear Regulator Act, 1999 (Act No. 47 of 1999), and the Nuclear Energy Act, 1999 (Act No. 46 of 1999)
6. Residue deposits and stockpiles regulated by: the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002.)
7. Disposal of explosives regulated by: the Explosives Act, 2003 (Act No.15 of 2003)
8. Disposal of animal carcasses regulated by: the Animal Health Act, 2002 (Act No. 7 of 2002)

1.4 Definition and scope

The Waste Act introduced a definition of waste, which has major implications for those activities that were traditionally not treated or regarded as waste. The Waste Act defines waste as follows:

"waste" means any substance, whether or not that substance can be reduced, reused, recycled and recovered -

1. that is surplus, unwanted, rejected, discarded, abandoned or disposed of;
2. which the generator has no further use of for the purposes of production;
3. that must be treated or disposed of; or
4. that is identified as a waste by the Minister by notice in the Gazette, and includes waste generated by the mining, medical or other sector; but -
   
   1. a by-product is not considered waste; and
   2. any portion of waste, once re-used, recycled and recovered, ceases to be waste;

Given the exclusion of by-products, their definition in terms of the Waste Act is important:

"by-product" means a substance that is produced as part of a process that is primarily intended to produce another substance or product and that has the characteristics of an equivalent virgin product or material;

To clarify some of these definitions, DEA has published its intended interpretation of the definition of waste and by-product as used in the Waste Act to help stakeholders understand the Department’s intentions.

1.5 International obligations

The NWMS must give effect to South Africa’s international obligations in terms of waste management⁹.

The modern system of global environmental governance is to a large degree a consequence of the Rio Earth Summit 1992 and Agenda 21, which set in motion a series of multilateral environmental agreements (MEAs). In relation to hazardous substances and waste, four principal conventions apply:

1. The Rotterdam Convention, acceded to by South Africa in 2002, promotes and enforces transparency in the importation of hazardous chemicals.
2. The Basel Convention, acceded to by South Africa in 1994, addresses the need to control the transboundary movement of hazardous wastes and their disposal, setting out the categorization of hazardous waste and the policies between member countries.
3. The Stockholm Convention on Persistent Organic Pollutants (POPs), to which South Africa became a signatory in 2001 and ratified in 2002, requires that member countries phase out POPs and prevent their import or export.
4. The Montreal Protocol, to which South Africa became a signatory in 1990 and ratified subsequent amendments, phases out the production of certain substances and so protects the ozone layer.

The South African government must give effect to the provisions of the international conventions to which the country has acceded. Section 4.6 will explore in more detail the mechanisms that are already operational or that will be established to give effect to the waste related conventions.

9. Section 6(1)(b), section 43(1)(b) and section 43(1)(d) of the Waste Act.

1.6 Problem statement

Waste management in South Africa faces numerous challenges and the NWMS sets out plans, targets and measures to address them. The main challenges are:

1. A growing population and economy, which means increased volumes of waste generated. This puts pressure on waste management facilities, which are already in short supply.
2. Increased complexity of the waste stream because of urbanisation and industrialisation. The complexity of the waste stream directly affects the complexity of its management, which is compounded when hazardous waste mixes with general waste.
3. A historical backlog of waste services for, especially, urban informal areas, tribal areas and rural formal areas. Although 61%¹⁰ of all South African households had access to kerbside domestic waste collection services in 2007, this access remains highly skewed in favour of more affluent and urban communities. Inadequate waste services lead to unpleasant living conditions and a polluted, unhealthy environment.
4. Limited understanding of the main waste flows and national waste balance because the submission of waste data is not obligatory, and where data is available, it is often unreliable and contradictory.
5. A policy and regulatory environment that does not actively promote the waste management hierarchy. This has limited the economic potential of the waste management sector, which has an estimated turnover of approximately R10 billion per annum¹¹. Both waste collection and the recycling industry make meaningful contributions to job creation and GDP, and they can expand further.
6. Absence of a recycling infrastructure which will enable separation of waste at source and diversion of waste streams to material recovery and buy back facilities.
7. Growing pressure on outdated waste management infrastructure, with declining levels of capital investment and maintenance.
8. Waste management suffers from a pervasive under-pricing, which means that the costs of waste management are not fully appreciated by consumers and industry, and waste disposal is preferred over other options.
9. Few waste treatment options are available to manage waste and so they are more expensive than landfill costs.
10. Too few adequate, compliant landfills and hazardous waste management facilities, which hinders the safe disposal of all waste streams. Although estimates put the number of waste handling facilities at more than 2000¹², significant numbers of these are unpermitted.

The rest of this document explains how the NWMS will address these challenges.

10. Stats SA Community Household Survey 2007 refuse removal data on 'kerbside' collection.
11. Michael Goldblatt of Palmer Development Group, "Macroeconomic trends, targets and economic instruments", paper prepared for Department of Environmental Affairs as part of NWMS process, August 2009
12. DEAT (2007), Assessment of the Status of Waste Service Delivery and capacity at Local Government level. Directorate: General Waste Management, August 2007, Draft 3.