2.2 Constitutional and Legal Framework

The Constitution of South Africa, 1996 (Act 108 of 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 is set out in the Bill of Rights (Section 24 of Chapter 2). This is the fundamental principle that underpins environmental policy (such as the White Papers on Environmental Management and Integrated Pollution and Waste Management) and law (principally the National Water Act; and National Environmental Management Act (NEMA)). The Waste Act forms an integral part of this overarching legal and policy framework, providing specifically for the management of the waste sector and regulation of waste management activities.

The Waste Act is required to adhere to the Constitutional assignment of legislative and executive powers between spheres of government. The Constitution assigns concurrent legislative competence to national and provincial government in respect of the environment and pollution control (Section 146 of the Constitution) and 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 provide for national norms and standards relating to these matters where national uniformity is required to deal effectively with an issue. Accordingly, the development of norms and standards is the foundation of the regulatory system established in terms of the Waste Act.

National government is obliged to develop norms and standards on certain matters, while provinces and municipalities are permitted to develop standards provided they are not in conflict with national standards. National and provincial government departments are also Constitutionally obliged to support municipalities in the execution of their functions. The Waste Act accordingly establishes cooperative governance mechanisms for dealing with matters such as waste planning, appointment of waste management officers and performance reporting.

White Paper on Environmental Management introduced the concept of the waste hierarchy, and the concept was subsequently given legal expression in NEMA. The waste hierarchy approach establishes waste avoidance or minimization as the key policy objective of waste management. 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. NEMA also placed a duty of care on any person who causes significant pollution or degradation of the environment, requiring them to institute measures to 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 hierarchy whilst protecting the environment and public health.

Subsequent amendments to and regulations issued in terms of NEMA have provided a detailed regulatory framework for the performance of Environmental Impact Assessments, which need to be closely aligned with the provisions for licensing of waste management activities. Environmental Management Inspectors (EMIs) are also designated and appointed in terms of NEMA, and these provisions form the backbone of the compliance and enforcement system that is required to support implementation of the Waste Act.

The Waste Act necessarily introduced a definition of waste, which has major implications for those activities that have traditionally not been treated or regarded as waste. Importantly for industry, the waste products and activities that fall outside the definition of waste are able to avoid the provisions of the Act. In order to clarify some of the definitional issues, a technical guideline will be developed by DEA as a basis for interpreting and applying the definition by both government and industry.