2. The policy and legislative context

2.1
The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) is the foundation of the system of environmental regulation and policy, and creates a human rights foundation for society and government that includes ‘third generation’ development rights.
Section 24 of Chapter 2 – the Bill of Rights establishes that everyone has the right to an environment that is not harmful to their health and well being, and that legislative and other measures should be used to ensure that the environment is conserved and protected for future generations.

2.2
In 1995, following the first democratic elections, the Consultative National Environmental Policy Process (CONNEPP) was launched, resulting in the 1997 White Paper on National Environmental Management. In its objectives, the 1997 White Paper defined a hierarchy of waste management practices that remains a key principle of our waste management policy:

• Reduction of waste at source;
• Re-use;
• Recycle; and
• Safe disposal as a last resort.

2.3
A main policy goal set out in the 1997 White Paper was a review of existing environmental legislation that would identify key legislative priorities and lead to the development of relevant and effective legislation. This policy goal resulted in the development of the National Environmental Management Act of 1998 (NEMA), which established the principles that govern all environmental management activities, building on the foundation provided by the 1997 White Paper and Section 24 of the Constitution. In relation to waste management in particular, NEMA establishes the following principles:

• A stronger statement of the waste hierarchy that establishes avoidance of waste as the most basic objective of waste management;
• A statement of the Precautionary Principle i.e. a conservative approach to decision-making that takes into account the limits of current knowledge about the consequences of decisions and actions;
• A requirement for planning to anticipate, and therefore prevent, minimize, and remedy negative impacts on the environment and human health;
• A life cycle approach to waste management encompassing extended producer responsibility.
• The “polluter pays” principle: i.e. the environmental and health costs of pollution must be paid for by those responsible for harming the environment.

2.4
NEMA also provided an institutional framework, which included:

• The National Environmental Advisory Forum, consisting of 12 – 15 stakeholder representatives and domain experts to inform and advise the Minister on fulfilling the objectives of the act.
• The Committee for Environmental Co-ordination (CEC), consisting of Director Generals from relevant departments, provincial heads of department, and persons co-opted by the Minister. CEC’s function is to ensure co-ordinated environmental management and execution of the integrated environmental management plans contemplated in the Act.

2.5
By providing a coherent framework of principles for environmental planning within the context of co-operative governance, NEMA paved the way for the development of the first National Waste Management Strategy (NWMS), published in October 1999.
The 1999 NWMS represented a significant advance in terms of providing a coherent, integrated approach to waste management and in many respects provides the context for the new NWMS. For this reason, it is discussed in greater depth elsewhere in this document.

2.6
In the process of developing the NWMS of 1999, the importance of developing an integrated approach to the management of pollution and waste became clear, resulting in the White Paper on Integrated Pollution and Waste Management for South Africa, 2000. The white paper specified the need to review legislation pertaining to waste management in light of the shift in focus from waste disposal to waste avoidance and minimization. This review process ultimately resulted in the Waste Act of 2007 that prescribes the formulation of the new NWMS.

2.7
The framework of environmental principles established by NEMA provides the basis for a series of Acts relevant to waste management, including:

• National Environmental Management: Protected Areas Act of 2003;
• The National Environmental Management: Air Quality Management Act of 2004, which provides a regulatory framework for minimizing air pollution;
• National Environmental Management: Biodiversity Act of 2004;
• The First and Second Amendments to NEMA;

2.8
The Minister has also created a detailed regulatory framework for the performance of Environmental Impact Assessments (EIAs) based on chapter 5 of NEMA, streamlining the previous system based on the Environment Conservation Act .
In terms of environmental policy, climate change has emerged as a priority area with implications for waste management. In October 2004, the DEAT launched the Climate Change Response Strategy, which was approved by Cabinet the following month.
During the financial year 2005/2006, the DEAT conducted intensive sector-specific consultation with a view to developing sector adaptation plans and mitigation plans.

2.9
The first National Climate Change Conference was held in October 2005. Owing to the crosscutting nature of climate change, the DEAT has established four formal stakeholder committees, which inform and coordinate climate change issues, including the implementation of the Climate Change Response Strategy.