Case CCT240/22
[2023] ZACC 18
Hearing Date: 21 February 2023
Judgement Date: 26 June 2023
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Monday, 26 June 2023 at 10h00, the Constitutional Court handed down an application for direct access in terms of section 167(4)(e) of the Constitution. The application concerned an alleged failure by Parliament, comprising the National Assembly (NA) and the National Council of Provinces (NCOP), to comply with its constitutional obligations to facilitate public participation, in terms of sections 59(1)(a) and 72(1)(a) of the Constitution. The applicants challenged the constitutional validity of specific provisions of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA Act) which sought to amend, inter alia, the definition of “waste” in the National Environmental Management Waste Act 59 of 2008 (Waste Act).
The first applicant was the South African Iron and Steel Institute (SAISI). SAISI represented the collective interests of the South African primary steel industry. Its members include three carbon steel producers and South Africa’s only stainless-steel producer. One of its members is ArcelorMittal South Africa Limited (AMSA), the third applicant in this matter. The second Applicant was Fertilizer Association of Southern Africa (FERTASA). FERTASA represented the fertilizer industry in Southern Africa with its members producing, trading, blending and distributing fertilizer products across Southern Africa. The fourth applicant was H Pistorius & Kie Proprietary Limited (H Pistorius & Kie). Through FERTASA, H Pistorius & Kie wished to be heard and to call for public participation in respect of the impugned amendments.
The first respondent was the Speaker of the NA and the second respondent was the Chairperson of the NCOP. The third respondent was the Minister of Forestry, Fisheries and the Environment. The fourth respondent was the President of the Republic of South Africa (President). The fifth to the thirteenth Respondents were cited in their official capacities as Speakers of the Provincial Legislatures across the country.
On 16 September 2015, the first version of the NEMLA Bill was approved by Cabinet and was published for public comment on 13 October 2015. Following public participation processes conducted by Parliament, the NA, the NCOP and their committees, the NEMLA Bill was passed by both houses of Parliament on 1 March 2022, and that Bill became the NEMLA Act. In terms of section 89 of the NEMLA Act, the Act will “come into operation on a date fixed by the President by proclamation in the Gazette”. That proclamation has not yet been issued.
Before this Court, the applicants contended that this Court has repeatedly confirmed that it has the power to determine whether Parliament – including the NA and NCOP – has failed to fulfil its constitutional obligations to facilitate public involvement in its legislative processes. The applicants contended that the NCOP and the Provincial Legislatures failed to comply with their constitutional obligations to conduct public participation. They contended that although they were afforded an opportunity to participate in the legislative process leading to the “D” version of the Bill, they were not afforded an opportunity to make representations when the new definition of waste (the “E” and “F” versions), which introduced material amendments and transitional provisions, was proposed.
The applicants further argued that the impugned amendments were material and were not subject to any further public participation processes, and that they were introduced long after previous versions of the Bill had been published for public comment, after public hearings had closed. The impugned amendments, in the applicants’ views, sought to expand the definition of “waste” to include “wanted” materials which a generator has “no further use for within its own processes, whether or not it has any commercial value for the generator”. They further argued that the effect of these amendments is that a vast range of products, co-products and by-products that were never regulated as waste before, will now be subject to the onerous requirements of the Waste Act, with significant consequences and costs.
The applicants submitted that they made repeated calls for further public participation and consultation processes on the impugned amendments, which they claim were ignored by Parliament. According to the applicants, Parliament failed in its duties to facilitate further public participation when it was necessary, reasonable, and practical to do so. They also argued that Parliament offered no meaningful explanation for its failure to facilitate further public participation processes in respect of the impugned amendments. This, the applicants argued, was contrary to the principles laid down by this Court in South African Veterinary Association v Speaker of the National Assembly (SAVA), where it was held that “a complete failure to take any steps to involve the public in a material amendment to a Bill cannot be reasonable by any measure.”
The first and second respondents contended that the impugned provisions were enacted by Parliament following a comprehensive public involvement process prior to the passage of the NEMLA Act. In this respect, they further contended that the definition of “waste” is a dynamic issue which was subject to extensive debate with the relevant industry stakeholders prior to the introduction of the NEMLA Act. They argued that the public involvement process that Parliament followed was in line with the relevant Parliamentary rules and procedures. Therefore, the first and second respondents submitted that the applicants had failed to make out a case to justify any interference by this Court with the public involvement process followed by Parliament.
In support of the first and second respondents’ position, they argued that while sections 59(1)(a) and 72(1)(a) of the Constitution impose an obligation on Parliament to “facilitate public involvement”, these provisions do not prescribe what such process should entail and, as such, Parliament is afforded a discretion in delineating its own public involvement processes. They stated that the impugned amendments were considered at NCOP level and through provincial negotiation mandates. Therefore, the impugned amendments were introduced and considered in a democratic process which was accessible to the public and in which democratically elected representatives participated. In relation to the applicants’ reliance on SAVA, they contended that the circumstances surrounding the passage of the impugned provisions of the NEMLA Act differ markedly from the impugned provisions in SAVA and, as a consequence, their reliance on that matter is misplaced.
In a unanimous judgment penned by Mathopo J, the Court confirmed that this matter engages its jurisdiction in terms of section 167(4)(e). Mathopo J noted that South Africa is a constitutional democracy that upholds representative and participatory democracy. He emphasised that the purpose of public participation and involvement in democratic processes is primarily to influence decision-making processes that affect the will of the people. Relying on Doctors for Life, Mathopo J held that “parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion.”
Mathopo J observed that in this matter, the two versions which require comparison were the “D” version on the one hand and the “F” (and enacted) version on the other. That the applicants did not complain of a lack of public participation leading up to and including the “D” version. Rather, their complaint concerns the lack of participation thereafter. He held that, upon a plain reading of the two definitions of “waste”, it is clear that they are remarkably different from the revised definition. He noted that all these amendments were introduced in June 2021, long after the period for public comment and public hearings had been concluded.
Furthermore, Mathopo J noted that the materiality of these amendments ushered in a new way of dealing with and defining waste. Up to version “D”, the definition of waste was described as “any substance, material or object, that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or required to be discarded or disposed of”. The “F” version which then found expression in the NEMLA Act sought to expand this definition to include “wanted” materials for which a generator has “no further use for within its own processes, whether or not it has any commercial value for the generator”.
In reaching his decision, Mathopo J considered that the effect of the amendments of the definition of waste was that a vast range of products, co-products and by-products that were never regulated as waste before, would now be subject to the onerous requirements of the Waste Act, with significant consequences including new regulatory requirements that have costs implications. That the impugned amendments were not subject to any further public participation process at either the national or provincial level.
Relying on Doctors for Life and this Courts recent decision in Mogale where the standard for adequate participation was dealt with, Mathopo J held that the respondents did not meet the standard for reasonable public participation. It was held that no effort was made to further engage the public and afford them an opportunity to submit their inputs on the impugned amendments. Mathopo J held that the argument that it would be impractical and cumbersome for a new public comment process to be initiated every time an amendment is made to a draft Bill is misconceived. He emphasised that at the initial stages of the Bill, when amendments now under consideration were superficial, members of the public were invited to comment.
In Conclusion, Mathopo J held that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in terms of sections 59(1)(a) and 72(1)(a) of the Constitution in respect of the provisions of the NEMLA. Mathopo J held that there was no compelling reason to suspend the declaration of invalidity to give Parliament an opportunity to correct the defect. The reason being that the impugned amendments were not yet brought into force and there were no reasons why the President should be entitled to bring into force provisions that have not been subjected to public participation. He held that the declaration of invalidity would not lead to a regulatory vacuum as the pre-amendment (that is, the current) definition of waste remains in force and there will be no lacuna in the legislation. The first and second respondents were directed, jointly and severally, to pay the applicants’ costs, including the costs of two counsel.
The Full judgment here
