1.3 Constitutional and legal framework

1.3(1) The National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) 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 hierarchy. In doing so it builds on the considerable body of environmental legislation which has developed since 1994. 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 or well-being is set out in the Bill of Rights (section 24 of Chapter 2). This fundamental right 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)). NEMA states that:

“the State must respect, protect, promote and fulfill the social, economic and environmental rights of everyone and strive to meet the basic needs of previously disadvantaged communities; inequality in the distribution of wealth and resources, and the resultant poverty, are among the important causes as well as the results of environmentally harmful practices.”

1.3(2)
The White Paper on Environmental Management established the concept of the waste hierarchy in South African environmental policy, and the concept was subsequently given legal expression in NEMA. The waste hierarchy is a systematic and hierarchical approach to integrated waste management, addressing in turn waste avoidance, reduction, re-use, recycling, recovery, treatment safe and disposal of waste as a last resort.

1.3(3)
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 places 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.

1.3(4)
Chapter 5 of NEMA promotes the application of appropriate environmental management tools in order to ensure the integrated environmental management of activities, and provides instruments for co-ordination and co-operation for integrated waste management.

1.3(5)
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 based on the Constitutional assignment of legislative and executive powers between the three 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.

1.3(6)
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 by the Waste Act to develop norms and standards on key regulatory matters, while it may develop additional norms and standards on certain ancillary matters. Provinces and municipalities are also permitted to develop standards provided they are not in conflict with national standards. Norms and standards developed in terms of the Waste Act also need to take cognisance of some important sectoral legislation, including the National Environmental Management: Air Quality Act (No. 39 of 2004) and the Health Act, 2004 (No. 61 of 2003).

1.3(7)
The Waste Act establishes cooperative governance mechanisms for dealing with matters such as waste planning, appointment 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.

1.3(8)
Due to the significance of municipal waste services, the Waste Act needs to be read in conjunction with the body of legislation regulating 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. There are some important overlapping provisions regarding waste services. For example, section 94(e)(ii) of the Municipal Systems Act allows the Minister to make regulations or issue guidelines for incentives and penalties to encourage the recycling of waste. In terms of section 74(1)(h) of the Municipal Systems Act, a municipal council must adopt and implement a policy on the levying of fees for municipal services provided by the municipality itself or by way of service delivery agreements. The policy encourages the economical, efficient and effective use of resources, the recycling of waste and other appropriate environmental objectives. Municipalities may also develop their own by-laws to provide for a municipal waste removal system in the municipal area.

1.3(9)
The Waste Act also needs to be read in conjunction with other sectoral legislation. For example, the Minerals and Petroleum Development Resources Act, 2002 section 39(3)(iii) states that Environmental Management Plans must comply with any prescribed waste standard or management standards or practices. The application of the Waste Act is also limited by reference to other sectoral legislation – it does not apply to: radioactive waste¹ , residue deposits and residue stockpiles² ; the disposal of explosives³ ; nor the disposal of animal carcasses⁴ , which are all regulated by their own sectoral legislation.

1.3(10)
Subsequent amendments to and regulations⁵ issued in terms of NEMA have provided a detailed regulatory framework for the performance of Environmental Impact Assessments; and the systems and procedures for considering EIAs are 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 designation of Waste Management Officers (WMOs) is stipulated for in the Waste Act where an officer can be designated at a national, provincial and municipal level and the officer is responsible for coordinating matters pertaining to waste management in the various tiers of government.

1.3(11)
The Waste Act 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. The definition of waste, as per the Waste Act, is as follows:

“waste” means any substance, whether or not that substance can be reduced, re-used, 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;

1.3(12)
Given the exclusion of by-products, their definition in terms of the Waste Act is also 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;

In order to clarify some of the definitional issues, a technical guideline has been developed and gazetted by DEA as a basis for interpreting and applying the definition by both government and industry.

Footnotes:

¹Radioactive 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)

²Residue deposits and stockpiles regulated by: the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002.)

³Disposal of explosives regulated by: the Explosives Act, 2003 (Act No.15 of 2003)

⁴Disposal of animal carcasses regulated by: the Animal Health Act, 2002 (Act No. 7 of 2002)

⁵Regulations in Terms of Chapter 5 of the National Environmental Management Act, 1998 Regulation No. R. 385, No. R. 386, and No. R. 387.