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.