Case Note: Constitutional Court upholds Minister’s defence of amendments to National Environmental Management Act
29 February 2016 at 5:30 pm
On 23 February 2016, the Constitutional Court upheld the Minister and Department of Environmental Affairs’ appeal against a judgement of the Pretoria High Court setting aside the publication of the National Environmental Laws Amendment Act 25 of 2014 (NEMLAA) signed into force by the President in June 2014. This means that the validity of NEMLAA – a key piece of legislation in the infrastructure of the One Environmental System – has been confirmed. The judgement related in particular to the new requirement that mining companies must obtain environmental licences for stockpiles and residue deposits.
Here is the Constitutional Court’s judgement and media summary. Below is a summary of the proceedings in the High Court and Constitutional Court.
High Court proceedings
On 22 May 2015, judgment was handed down in the Gauteng Division of the High Court, Pretoria in the matter of Aquarius Platinum (SA) (Pty) Ltd v Minister of Water and Sanitation and others, setting aside the publication of the National Environmental Laws Amendment Act 25 of 2014 (NEMLAA).
The judgment set aside the publication of NEMLAA on the grounds that the President should not have published this Act without the promulgation of regulations required to implement the Act. NEMLAA introduced a number of amendments to the National Environmental Management Act, 1998 (NEMA) and to the National Environmental Management: Waste Act, 2008 (NEMWA), all part of the suite of Acts which gave rise to the One Environmental System.
The setting aside of the publication of NEMLAA was not an outcome expressly sought by Aquarius Platinum. Aquarius Platinum’s application to court stemmed from its frustration with the Department of Water & Sanitation (DWS) and the DMR in trying to obtain approval for a proposed project (the West-West Pit Project).
Part of Aquarius Platinum’s application to court concerned NEMLAA and the amendments which it brought about to NEMWA. These amendments meant that NEMWA now applies to stockpiles and residue deposits, and that mining companies who have stockpiles and residue deposits must apply to the DMR for both environmental authorisation and a waste management licence. Given the scope of hazardous waste generation and storage in tailings dams and dumps on mining sites (the mining sector is the single biggest generator of waste in South Africa), the mining industry strongly resisted having to be regulated by NEMWA during the law reform process. That battle was lost in Parliament, and so disposal pits such as the proposed West-West Pit now require a waste management licence under NEMWA.
However, the amended NEMWA provided that residue stockpiles and residue deposits must be managed in a manner to be prescribed by regulation. These regulations had not been published at the time of NEMLAA coming into force and at the time that Aquarius Platinum sought approval for its West-West Pit Project. Aquarius Platinum argued that these regulations were necessary for the proper implementation of the environmental regulation of residue stockpiles and residue deposits, and that the President acted irrationally by bringing NEMLAA into effect before the regulation were in place. In South African law, irrational conduct by an organ of state is unlawful and can be set aside by a Court.
However, Aquarius Platinum had framed the relief it requested narrowly, essentially asking the court for special treatment: declaring its particular project to be authorised by the DMR without being subjected to any new waste law requirements. The court, relying on Aquarius Platinum’s argument that the President’s decision to publish NEMLAA without the regulations was irrational, held that narrowly tailoring the relief of constitutional invalidity to the West-West Pit Project would not be appropriate. This led the court to set aside (subject to confirmation by the Constitutional Court) the publication of NEMLAA on the grounds that “the conundrum created by the publication of NEMLAA without the regulations has a far wider impact than simply on Aquarius”.
The High Court postponed the determination of Aquarius’s claim that the failure by the Department of Water Affairs to take a decision on its water use licence application was unlawful.
Constitutional Court proceedings
In terms of section 172(2)(a) of the Constitution, a High Court may make a finding of constitutional invalidity of legislation or conduct of the President, but such a finding will have no force unless it is confirmed by the Constitutional Court. The High Court’s finding that the President’s decision to publish NEMLAA was therefore referred to the Constitutional Court for confirmation.
The Minister of Environmental Affairs and the Department of Environmental Affairs, cited in the High Court case for their interest in the matter, also appealed against the finding of the High Court that the publication of NEMLAA by the President was unconstitutional.
Before the matter was heard by the Constitutional Court, the Minister of Environmental Affairs published Regulations Regarding the Planning and Management of Residue Stockpiles and Residue Deposits from a Prospecting, Mining, Exploration or Production Operation (24 July 2015). This prompted Aquarius to withdraw from the matter.
The Constitutional Court differed from the High Court as to whether the decision of the President to publish NEMLAA was irrational. In a unanimous judgement prepared by Jafta J, the Court held that the provision which empowered the President to publish, did not require the President to ascertain whether the relevant regulations were already made before publication. The Court reasoned that in the present circumstances publication of the Act could precede the making of the regulations because the Act came into effect three months from the date of publication.
The Constitutional Court pointed out that the Act afforded the Minister of Environmental Affairs three months to make the necessary regulations, and held that the President had no reason to believe that the Minister would fail to make the regulations within the stipulated time. For unexplained reasons, the Minister failed to make the necessary regulations before NEMLAA came into effect. The Court found that this failure rendered the Act unworkable. The Court criticised the Minister’s conduct, remarking that “The fault for putting the Environmental Amendment Act into force without the necessary regulations lies squarely on the Minister’s shoulders. She and she alone is to blame and not the President.” However, having found that the President’s decision was not irrational, the Court upheld the appeal and declined to confirm the High Court’s order of invalidity.
 Pharmaceutical Manufacturers Association of South Africa and another in re: the ex parte application of The President of the Republic of South Africa and others (case No. CCT 31/99)
 Aquarius Platinum asked that the court order that the licencing provisions of NEMWA are not applicable to the West-West Pit Project. Before NEMLAA amended NEMWA, residue stockpiles and deposits were regulated by Regulation 73 of the Regulations published in terms of the Mineral and Petroleum Resources Development Act, 2002. Aquarius Platinum argued that the DMR, by allowing it to amend its EMPR to include the construction and operation of the West-West Pit Project, had already authorised the project (since it was not disputed that the application for an amendment of the EMPR complied with Regulation 73).
 These regulations have since been published. See: Regulations regarding the planning and management of residue stockpiles and residue deposits from a prospecting, mining, exploration or production operation, published as GNR 632 in Government Gazette 39020 on 24 July 2015.