Far-Reaching Implications for Waste Management: A Critical Analysis of Minister of Environmental Affairs & Another v Arcelormittal South Africa Limited Unreported (342/2019) [2020] ZASCA 40 (17April 2020)

List of Abbreviations

APPA                         Atmospheric Pollution Prevention Act

BOF                           Slag Basic Oxygen Furnace Slag

BOFSDS                    Basic Oxygen Furnace Slag Disposal Site

ECA                           Environment Conservation Act

NEM: WA                  National Environmental Management: Waste Act

NEM: WAA               National Environmental Management: Waste Act Amendment Act

NEMA                        National Environmental Management

SCA                            Supreme Court of Appeal

WA                            Water Act

WML                         Waste Management License

1. FACTUAL BACKGROUND

The SCA Judgment handed down in the matter of Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited[1] concerned ArcelorMittal’s treatment and management of its BOF Slag at one of its Newcastle operations. ArcelorMittal manufactured steel products since the 1970’s and one of its by-products was BOF slag which was either immediately sold to third parties (“current arisings”) or stored at the BOFSDS and sold at a later stage (“reclaimed slag”).[2]  An environmental management inspector for the Department of Water Affairs conducting an inspection with the view of determining whether ArcelorMittal complied with the newly issued authorisations found that ArcelorMittal was operating without WML issued in terms of s 49(1)(a) of the NEM:WA.[3] A compliance notice was given, which required ArcelorMittal to cease its BOF slag disposal operations until such a time that the Department agreed in writing that the activities could recommence.[4] Dissatisfied, ArcelorMittal instituted legal proceedings in the High Court which found in its favour and accordingly, the Minister of Environmental Affairs (“first appellant”) appealed against the  High Court’s order to the SCA.

• ISSUES OUTLINED

The following issues will be discussed herein below, namely:

• Whether ArcelorMittal was subject to the prescripts of the ECA[5], NEMA[6], and the NEM: WA[7] even if it commenced with its Newcastle operations long before the enactment of these Acts;[8]
  • Whether material that is earmarked for recycling but that has not yet been recycled (“reclaimed slag”) fall within the ambit of the definition of waste in terms of NEM: WA;
  • Why the court dismissed the directive issued by the Department in terms of section 28 of NEMA.

• RULE OF LAW: WASTE MANAGEMENT IN SOUTH AFRICA

Various pieces of legislation were put into place over the past decades in order to try and regulate waste management in South Africa, including the ECA, the Constitution of the Republic of South Africa[9] (“Constitution”), NEMA, and the NEM: WA. The study will discuss the evolution of waste management legislation by briefly looking at the historical and thereafter the current legal framework with regard to waste management in South Africa. Accordingly, the discussion will follow with regard to the pre-1970s and post-1970s environmental legislation. The study will discuss in broad detail the definition of waste as provided in these pieces of legislation to determine whether the interpretation of the definition in the Judgment of ArcelorMittal[10] was indeed correct or not.

• Pre-1970 Environmental Legislation:The Water Act[11]

Up until at least the 1970s, there was no “integrated framework legislation” for environmental management with specific reference to waste management in South Africa. The WA did not specifically regulate waste management, but provided for the regulation of waste-related aspects as far as it related to the disposal / treatment of effluent.[12] The WA was the first piece of legislation that was aimed at the control of the industrial use of water and the treatment / disposal of effluent. The WA required that all effluent be returned to the water body from which the water was originally drawn. Later amendments in terms of the Water Amendment Act,[13] broadened water quality management in the form of uniform effluent standards. The WA was repealed by the National Water Act,[14] . [15]

• Atmospheric Pollution Prevention Act[16]

The APPA did not specifically provide for waste management regulation, but certain waste management aspects were regulated as far as they related to air quality emissions by means of the licensing of scheduled processes or specific conditions contained as part of registration certificates. It is clear that although waste management was not specifically defined and regulated in terms of the APPA nor the WA, waste materials were regulated as part of the APPA by listed schedule processes that regulated waste related activities that could have had an impact on the environment with specific reference to atmospheric emissions, or as part of conditions contained in provisional/final registration certificates dealing with other aspects, such as the disposal of certain waste streams connected with scheduled processes. The APPA was repealed in its entirety by the National Environmental Management: Air Quality Act.[17]

• Post-1970 Environmental Legislation:Environmental Conservation Act[18]

The ECA was the first piece of legislation formally regulating waste management in South Africa. The ECA, whose main objective was to provide for the effective protection and controlled utilisation of the environment, came into operation on 9 June 1989.[19] The ECA provided for a definition of ‘waste’ and also regulated the disposal of waste at disposal sites. In terms of the ECA, waste was initially defined as ‘Any matter whether gaseous, liquid or solid or any combination thereof, originating from any residential, commercial or industrial area or agricultural area identified by the Minister as an undesirable or superfluous by-product, emission, residue or remainder of any process or activity’.[20]

The aforementioned definition of waste was only functional in relation to the operation

of a waste disposal site. In terms of Section 20(1) of the ECA – ‘no person may establish, provide or operate a disposal site without a permit’. The words ‘disposal’, ‘disposing of’ and ‘treatment’ are not defined in the ECA. The act of disposing involves some measure of permanence and a disposal site means the ultimate destination of such waste.[21] As a result, temporary storage areas of waste for other purposes than treatment of waste for final disposal were not included in the interpretation of disposal.

The ECA does not, pertaining to the identification of matters of a waste, make any reference whatsoever to ‘store’ or ‘the storage of waste’ and are silent on this subject. In view of the aforesaid, it speaks for itself that storage cannot be construed as disposal, and therefore a site which is utilised for the storage of waste cannot be construed as a disposal site within the meaning of the ECA. As a result of the above, it is clear that the ECA (in terms whereof only waste disposal was regulated), did not make provision for the temporary storage of waste and other waste management related aspects. The aforementioned, was not contended in the case of ArcelorMittal. The contention dealt with whether the entire provisions of the section 20(1) of the ECA were applicable to the Newcastle operations which had commenced before the enactment of this Act.

• The Constitution of the Republic of South Africa[22]

The Constitution instructs and informs all other legislative laws and policy guidelines, by setting the framework for the administration of environmental laws by national, provincial and local spheres of government.[23] This forms the legal backbone of all the legislation. The promulgation of the Constitution had major implications for environmental management in South Africa. The main effects are the protection of environmental rights. This aspects provide general and overarching support, and are of major assistance in the effective implementation of the environmental management principles and structures of the NEMA. The promulgation of the Constitution was the first step towards the provision of an integrated framework legislation for the management of the country’s natural resources and other environmental-related issues. Furthermore, it contains an environmental right^[24] and also provides for the allocation of responsibilities amongst the different spheres of government in the country.^[25]

• National Environmental Management Act[26]

NEMA did not per se regulate waste management as part of the Act, but regulated waste management-related aspects as part of the EIA listed activities[27], promulgated in terms of the NEMA. The NEMA therefore did not only regulate the disposal of waste but also other waste management-related aspects, such as the recycling and recovery of waste. The NEMA does not provide for a separate definition of waste and as a result, reference was still made to the definition of waste as envisaged in terms of the ECA, and therefore many recycling and recovery activities were not regulated. The term ‘waste’ was never defined in terms of the NEMA, and as a result, reference was made to the definition of ‘waste’ as defined in terms of the ECA. The terms ‘recycling’ and ‘re-use’ were also not defined in terms of the ECA, and as a result, these terms remained opened for interpretation. This situation was, however, rectified by the NEM: WA.

• National Environmental Management: Waste Act[28]

Whereas the Constitution and NEMA have been shown to serve as framework environmental legislation,^[29] the Specific Environmental Management Act’s regulate sector-specific environmental concerns, including but not limited to: NEM: WA. NEM: WA fundamentally reformed the law regulating waste management in South Africa, and for the first time provided a coherent and integrated legislative framework for addressing all the steps in the waste management hierarchy. The NEM: WA repealed the ECA to a large extent, as well as NEMA as far as it related to waste management issues. With the promulgation of the NEM: WA, a new emphasis was put on waste management in South Africa. One of the most significant principles that NEM: WA is giving effect to is sustainable development which requires that the generation of waste is avoided, or where it cannot be avoided, that it is reduced, re-used, recycled or recovered, and only as a last resort treated and safely disposed of.[30]

The NEM: WA thus ultimately seeks, inter alia, to encourage the prevention and reduction / minimisation of waste generation through legislated ‘command and control’ mechanisms, whilst promoting the justifiable re-use and re-cycling of the waste, and only considers disposal of waste, as well as the remediation of land affected by poor waste management practices, as a last resort.

NEM: WA changed the definition of waste significantly and for the first time in waste management legislation in South Africa, NEM: WA provides for definitions for the re-use, recovery and recycling of materials and also provides for a definition for a by-product since these concepts are now also regulated in terms of the NEM: WA. Currently waste as defined in terms of NEM: WA is ‘any substance, whether or not that substance can be reduced, re-used, recycled and recovered that is surplus, unwanted, rejected, discarded, abandoned or disposed of.’[31] ‘Whether or not that substance can be recycled’ will form the crux of this discussion herein below to which the SCA failed to consider this aspect of the definition[32] and consequently erred in its findings.

• APPLICATION: CRITICAL ANALYSIS OF THE CASE
  • Applicability of retrospectivity

Prior to NEM: WA, waste management was fully regulated by the ECA[33] which required a permit for the operation of a waste disposal facility. The ECA, however, commenced on 9 June 1989 and the court found that it did not retrospectively regulate waste management or waste disposal established and operated since the 1970’s.[34] The ECA did not provide for transitional arrangements for disposals sites that were in existence before the ECA came into effect.[35] The Judgment does make mention that there is, of course, a legal presumption that new legislation is not intended to be retroactive,[36] nor retrospective in the sense that it takes effect only from its date of commencement, and does not it impairs existing rights and obligations.[37] The rationale for this presumption is that a person should be able to know the law and be able to conform his/her conduct to the law.[38]  

The appellants in the ArcelorMittal case accepted that ArcelorMittal’s BOFSDS at its Newcastle operations had been in existence since the 1970s and did not require a permit under section 20 of the ECA.[39] While there is no authority for the proposition that retrospective environmental legislation would survive constitutional scrutiny, it is the findings of this study that the ECA should have been interpreted to apply retrospectively. Even though a matter may be moot as between the parties, that does not necessarily constitute an absolute bar to justiciability.[40] A court has discretion whether or not to hear a matter.[41] This will be the case where it will either benefit the lager public or achieve legal certainty.[42] The reasons the ECA should have been interpreted to apply retrospectively are that although it may be unfair to compel a company to pay for alternatively remedy pollution that occurred when protection of the environment was not a priority, it can be also argued that it is even more unfair to expect the government to pay for clean-up activities when they derived no benefit from the business. The legal culture leaning against retrospectivity where there is unfairness.[43]

Further reasonable measures must be taken, not only where activities are currently causing pollution or where they may in the future but also where past activities have caused contamination, which contamination remains evident in the environment. ArcelorMittal accepted that had it not been for the fact that its Newcastle plant had been operational since the 1970’s, its activities there would have required authorisation under section 22(1) of the ECA,[44] meaning its activities were contributing to the pollution and indeed needed to be properly regulated. In Sayers v Minister of Local Government Environmental Affairs & Development Planning & Others[45], the court held that while section 20 of the ECA did not operate retrospectively, NEM: WA repealed section 20 of the ECA and fortified against the view against retrospectivity.[46]

• The interpretation of the definition of waste

Defining a material as a waste involves treading a very thin line between ‘resource’ and ‘waste’. In addition, the classification of a material as ‘waste’ has fundamentally important commercial consequences; for instance, disposal requirements, and transportation of hazardous substances.[47] Therefore, there is a need for a clear definition of waste, and perhaps more importantly, clarity on when a substance is waste and when it will cease to be a waste. This study provides a brief overview of the legal definitions of waste adopted abroad and a detailed discussion of the interpretation of the definition of waste as contained in South African legislation and the interpretation adopted in the ArcelorMittal case.

• International definition of waste: European Union

Generally, the definition of waste is defined according to the type of waste being disposed by the possessor. The basic requirements are usually licenses for the disposal of any kind of waste, at specified sites.[48] It is however found that, even at international level, it is hard to give a clear-cut definition of waste.[49] Even at international level waste management has proved a “hard task to master”, noting that this issue has for a long time been a major part of the European Union (EU) environmental policy.

International comparative standards aid in guiding local assessments as an indication of what waste management should include. Europe has had a strong influence on the policy and legislation that has emerged in South Africa since the late 1990’s.[50] Hence it becomes imperative to briefly illustrate international law, to be able to comprehend the legal framework within which South Africa negotiates and manages its environmental and solid waste practices. The Waste Framework Directive[51] defines waste as ‘any substance or object in the categories set out in Annex I [of the Directive] which the holder discards or intends or is required to discard’. While simple, this definition is problematic in its interpretation and inconsistent in its enforcement.[52] There is no consensus about when material is discarded or intended to be discarded. This uncertainty in the definition of waste has been argued to have implications for human rights.[53]

The definition of waste should allow for responsible waste recovery, recycling and re-use, while at the same time, not ignoring the potential environmental and human health impacts associated with these activities. European case law gives a legal resolve on when waste is no longer considered waste. If material can be re-used without further processing and if there is financial advantage to be gained from the re-use, the substance in question should not be regarded as waste, but as a legitimate product. The reasoning applicable to by-products should be confined to situations in which the re-use of the goods, materials or raw materials is not a mere possibility but a certainty.[54] Internationally, a serious emerging terminological and regulatory problem is being raised by increased controversy regarding potentially recyclable waste. In most existing legal definitions, the term ‘waste’ includes material that is technically suitable for recovery and re-use.[55] By including these waste-streams in the definition of waste, the material becomes subject to the same regulations as other waste-streams that are not (or currently not) suitable for recovery.

• South African definition of waste

South Africa’s legal definitions of waste according to the NEM: WA and the NEMWAA[56] is that waste is any superfluous, discarded, abandoned, rejected and unwanted substance whether or not such substance, material or object can be re-used, recycled or recovered.[57] This definition perceives waste as useless and material that is unwanted but most importantly, it is waste regardless of its potential to be recycled or re-used.[58]

The problem question that arises within industry is whether a material, suitable for re-use or further processing should be regarded as waste, and whether it should be regulated as such. Thus, to what extent should material that can be re-used, recovered or recycled be regulated in terms of NEM: WA?  It was contended by the appellants that inasmuch as ArcelorMittal would in future recycle and later sell the BOF slag to third parties, it was consequently dealing with waste and therefore required a WML to lawfully do so as required by legislation.[59] ArcelorMittal on the other hand argued that reclaimed slag, once it is recovered from the BOFSDS – where it is temporarily deposited because it could not be sold immediately – and recycled, it ceases to be waste if it meets any one of the requirements of s 1(b)(i) to (iv) of NEM:WA. Consequently, ArcelorMittal contended that it did not require a WML in order to dispose of ‘soon to be recycled’ BOF slag.[60] The court found the contentions advanced on behalf of ArcelorMittal to have considerable force.[61]

On a fair reading thereof, it becomes readily apparent that any substance, material or object that is not ‘unwanted, abandoned, or disposed of’ does not fall within the ambit of the definition. [62] Further, any waste that is recycled, and re-used ceases to be waste.[63] Consequently, ArcelorMittal’s reclaimed BOF slag self-evidently fall outside the terms of the definition of waste.[64] However, the definition of waste in NEM: WA[65] and NEM: WAA[66], as amended does not end there. The definition continues to include the following: ‘waste means any substance whether or not that substance can be reduced, re-used, recycled and recovered’. The court accordingly failed to read and carefully consider the full definition of waste and accordingly erred in its findings. Whether the reclaimed slag will be recycled and sold in the future is irrelevant. At the time that it is stored in the BOFSDS, it is waste and accordingly requires WML.

The correct interpretation of waste is accordingly imperative for the regulation of waste and the control of possible negative impacts of waste on the environment and human health if not properly managed. It is therefore important to define waste in a way that will support the regulation of environmental impacts, as well as support the principles of integrated waste management, as defined through the waste hierarchy.[67] The decision of ArcelorMittal has far-reaching implications. The courts dicta that in recycling its waste, i.e., reclaimed BOF slag, ArcelorMittal was in fact promoting one of the principal objects of the NEMA, that is, to protect the environment from degradation,[68] the court failed to consider the environmental degradation caused during the storage process. The court was incognizant to the pollution as result of the BOFSDS. The court failed to take into consideration that recyclable material also needs to be controlled in order to limit the risks to the environment and to ensure that principles such as the ‘polluter-pays-principle’, the ‘cradle-to-grave principle’, as well as the ‘duty-to-care principle’ as envisaged in the NEMA[69] continues to apply, irrespective of the after-use of the material. Far from being obscure, the definition is clear and unequivocal,[70] therefore what led to the court’s confusion in the case of ArcelorMittal[71] is inexcusable.

• CONCLUSION AND RECOMMENDATIONS

It is necessary to critically review the definition of ‘waste’ as contained in the NEM: WA and the possible implications of such interpretation(s) on the steel making industry in South Africa and to make certain recommendations with regard to future regulation of waste. The steelmaking industry is a very intricate, diverse and dynamic industry which provides for many possible recycling, recovering and re-use opportunities for various materials produced as part of the steelmaking process. The current interpretation of the definition of waste by the court in the ArcelorMittal case is simply not viable in achieving the principles as envisaged in terms of the waste hierarchy, which forms part of section 2 as contained in the NEM: WA.[72]

However, cognisance should be taken of the fact that the court, by accepting the narrow interpretation, was not suggesting that the use of the materials should not be regulated at all but in a sense, it seemed to implied that. It must be understood by the courts that government needs to regulate the use of these materials to make sure that the use of the materials complies with sound environmental principles. The slags that are currently not being regarded as a waste by the court are in no way obligated to comply with waste-related regulations, as well as other regulations with regard to dangerous goods and other product-related legislation. The courts decision that the materials be regulated as a by-product, and thus excluded from the definition of ‘waste’ does not align with the Constitution and does not help resolve the environmental degradation.

Accordingly, the net effect of the Judgment has far-reaching implications for waste management. The Judgment confirms the legitimacy of a waste disposal site which operated “lawfully” before the commencement of the ECA and NEM: WA respectively, and that issuing decommissioning WML for such a waste disposal site doesn’t triumph what already existed. This will negatively impact our already degrading environment. It is for this reason that this study supports the need for “greening the judiciary.”[73] The development of a coherent and robust South African environmental jurisprudence depends on it.[74] This does not necessarily mean all cases are to favour the environment, however, judges are expected to give appropriate deliberation when making judgments.[75] It could have been that the court deliberately misconstrued the definition of waste in terms of the NEM: WA in order to ensure its decision was socially and politically appropriate or its flawed interpretation of waste due to plain and simple judicial error or the court’s failure to utilise its discretion, however one expects a lot more from the SCA. It is recommended that the BOF slag that is disposed into the BOFSDS be regarded as waste in terms of NEM: WA and accordingly WML should be obtained, however BOF slag that is immediately sold to third parties need not be defined as waste and accordingly no WML are required.

Principle references

Primary Sources

Cases

• ArcelorMittal South Africa Limited v Minister of Environmental Affairs and Another (86171/2016) [2018] ZAGPPHC 577 (8 June 2018).
• Bareki NO and Another v Gencor Ltd and Others (2006) 1 SA 432 (T).
• Gcaba v Minister of Safety and Security 2009 12 BLLR 1145 (CC); 2010 1 BCLR 35 (CC).
• Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020).
• National Director of Public Prosecutions v Carolus and Others (2000) (a) SA 1127 (SCA).
• President of the Republic of South Africa and Another v Hugo (1997) (4) SA 1 (CC).
• S v Mhlungu and Others 1995 (3) SA 867 (CC).
• Sayers v Minister of Local Government Environmental Affairs & Development Planning & Others Unreported judgment (7860/2010) Western Cape High Court, Cape Town 19 July 2011.

Statutes

• Atmospheric Pollution Prevention Act 45 of 1965.
• Constitution of the Republic of South Africa, 108 of 1996.
• Environmental Conservation Act 73 of 1989.
• National Environmental Management Act 107 of 1998.
• National Environmental Management: Waste Act 59 of 2008.
• National Environmental Management: Waste Amendment Act 26 of 2014.
• National Environmental Management: Air Quality Act 39 of 2004.
• National Environmental Management Act 107 of 1998: EIA listed activities Notice No. No. R. 983 in Gazette No. 38282 dated 4 December 2014.
• National Water Act 36 of 1998.
• The Water Act 54 of 1956.
• Water Amendment Act 96 of 1984.

Foreign Legislation

European Union

• Waste Framework Directive Council Directive 75/442/EEC on Waste (1975). Official Journal of the European Communities, L 194/39, 15 July 1975, subsequently amended by Council Directive 91/156/EEC.

Secondary sources

Books

• Kidd M “Environmental Law” (Juta Cape Town 2008).
• Kidd M “Environmental Law: 2^nd Ed (Juta Cape Town 2011).
• Garbutt, J. ‘Waste Management Law a practical handbook’ 2^nd Ed (Wiley 1995).
• Glazewski, J. “Environmental Law in South Africa” 2^nd Ed (LexisNexis, Butterworths, Cape Town, SA 2005).
• Home, R. ‘Papers in Land Management: No. 4” in A Guide to European Environmental Law.’ (Anglia Ruskin University, Cambridge and Chelmsford 2007).

Journal Articles and Conference Papers

• Kidd M “Greening the Judiciary” (2006) Vol 9 PER/PELJ 3.
•  Bainbridge T. (2006). ‘Secondary materials: Will new rules make a new beginning for the end-of-waste?’ Conference proceedings of the Waste 2006 conference held in Statford-upon-Avon, Warwickshire, U.K.
•   Staker C. ‘The definition of ‘waste’ in the Waste Framework Directive.’ (2005) Eur. Curr. Law, March.
• Twardowska I. and Szczepanska J. ‘Solid waste: terminological and long-term environmental risk assessment problems exemplified in a power plant fly ash study.’ (2002) Sci. Tot. Environ. 285, 29–51. 

Online Publications

• Dlamini, S., Simatele, M., & Kubanza, M. (2019). Municipal solid waste management in South Africa: From waste-to-energy recovery through waste-to-energy technologies in Johannesburg. Local Environment, 24(3), 249–257. doi:10.1080/13549839.2018.1561656.
• Oelofse, S.H.H. & Godfrey, L. ‘Defining waste in South Africa: Moving beyond the age of waste’ South African Journal of Science (2008) 104 2 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0038-23532008000400001 (Accessed 26 April 2022).
• Oelofse, S.H.H. & Godfrey, L. ‘Historical Review of Waste Management and Recycling in South Africa’ Resources 2017, 6, 1 doi:10.3390/resources6040057 www.mdpi.com/journal/resources (Accessed 13 May 2022).
• South Africa. Department of Water and Environmental Affairs. (2011). Water Quality Management in South Africa. http://www.dwa.gov.za/Dir_WQM/wqm.asp, 3 (Access: 22 February 2022).
• South Africa. Department of Environmental Affairs. 2010 (a). National Waste Management Strategy. Pretoria: Government Printer. 155p, 27. https://www.dffe.gov.za/sites/default/files/docs/nationalwaste_management_strategy.pdf (Accessed 14 May 2022).

---

[1] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020).

[2] Ibid, para 9.

[3] Ibid, para 11 and 13.

[4] Ibid, para 13.

[5] Environment Conservation Act, 1989 (Act No. 73 of 1998).

[6] National Environmental Management Act, 1998 (Act No. 107 of 1998).

[7] The National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008).

[8] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020) para 27.

[9] Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).

[10] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020).

[11] The Water Act 1956 (Act No. 54 of 1956).

[12] Section 21(1)(a) of the Water Act 1956 (Act No. 54 of 1956).

[13] Water Amendment Act, 1984 (Act No. 96 of 1984).

[14] National Water Act, 1998 (Act No. 36 of 1998).

[15] South Africa. Department of Water and Environmental Affairs. (2011) Water Quality Management in South Africa. http://www.dwa.gov.za/Dir_WQM/wqm.asp, 3 (Access: 22 February 2022).

[16] Atmospheric Pollution Prevention Act 1965 (Act No. 45 of 1965).

[17] National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004).

[18] Environmental Conservation Act, 1989 (Act No. 73 of 1989).

[19] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17 April 2020) para 23.

[20] Section 1(xxii) of the Environment Conservation Act 1989 (Act No.73 of 1989).

[21] Dispose of – to make a disposition, ordering, or arrangement of, and to get rid of, to get done with, settle, furnish or to make over or part with by way of sale, bargain, sell.

[22] Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).

[23] Glazewski, J. (2005) “Environmental Law in South Africa” (Second Edition). LexisNexis, Butterworths, Cape Town, SA, 68.

[24] Section 24 of the Constitution, 1996.

[25] M Kidd ‘Environmental Law: A South African Guide’ (2008) (Juta: Cape Town), 18.

[26] National Environmental Management Act 1998 (Act No. 107 of 1998).

[27] National Environmental Management Act 1998 (Act No. 107 of 1998): EIA listed activities Notice No. No. R. 983 in Gazette No. 38282 dated 4 December 2014.

[28] National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008).

[29] M Kidd ‘Environmental Law’ 2ed 2011 (Juta: Cape Town) 20.

[30] South Africa. Department of Environmental Affairs. 2010 (a). National Waste Management Strategy. Pretoria: Government Printer. 155p, 27. https://www.dffe.gov.za/sites/default/files/docs/nationalwaste_management_strategy.pdf (Accessed 14 May 2022).

[31] Section 1 of National Management: Waste Act 2008 (Act No. 59 of 2008).

[32] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) Para 41.

[33] Section 20 of the Environment Conservation Act 1989 (Act No. 73 of 1989).

[34] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 29.

[35] ArcelorMittal South Africa Limited v Minister of Environmental Affairs and Another (86171/2016) [2018] ZAGPPHC 577 (8 June 2018) para 22.

[36] S v Mhlungu and Others 1995 (3) SA 867 (CC) para 65.

[37] National Director of Public Prosecutions v Carolus and Others 2000 (a) SA 1127 (SCA) para 35 -35

[38] President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) para 102.

[39] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 36.

[40] ArcelorMittal South Africa Limited v Minister of Environmental Affairs and Another (86171/2016) [2018] ZAGPPHC 577 (8 June 2018) para 83.

[41] ArcelorMittal South Africa Limited v Minister of Environmental Affairs and Another (86171/2016) [2018] ZAGPPHC 577 (8 June 2018) para 83.

[42] Gcaba v Minister of Safety and Security 2009 12 BLLR 1145 (CC); 2010 1 BCLR 35 (CC) para 18.

[43] National Director of Public Prosecutions v Carolus and Others 2000 (1) SA 1127 (SCA) at 1139C – D.

[44] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 24.

[45] Sayers v Minister of Local Government Environmental Affairs & Development Planning & Others Unreported judgment (7860/2010) Western Cape High Court, Cape Town 19 July 2011.

[46] Ibid, para 20, 23, and 25.

[47] Oelofse, S.H.H. & Godfrey, L. ‘Defining waste in South Africa: Moving beyond the age of waste’ South African Journal of Science (2008) 104 2 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0038-23532008000400001 (Accessed 26 April 2022).

[48] Garbutt, J. (1995) ‘Waste Management Law a practical handbook’ (Second Edition). Wiley, 123.

[49] Home, R. (2007) “Papers in Land Management: No. 4” in A Guide to European Environmental Law. Anglia Ruskin University, Cambridge and Chelmsford 14.

[50] Oelofse, S.H.H. & Godfrey, L. ‘Historical Review of Waste Management and Recycling in South Africa’ Resources 2017, 6, 1 doi:10.3390/resources6040057 www.mdpi.com/journal/resources (Accessed 13 May 2022).

[51] Waste Framework Directive Council Directive 75/442/EEC on Waste (1975). Official Journal of the European Communities, L 194/39, 15 July 1975, subsequently amended by Council Directive 91/156/EEC.

[52] Bainbridge T. (2006). ‘Secondary materials: Will new rules make a new beginning for the end-of-waste?’ Conference proceedings of the Waste 2006 conference held in Statford-upon-Avon, Warwickshire, U.K.

[53] Staker C. ‘The definition of ‘waste’ in the Waste Framework Directive.’ (Eur. Curr. Law, March 2005).

[54] Oelofse, S.H.H. & Godfrey, L. ‘Defining waste in South Africa: Moving beyond the age of “waste”.’ South African Journal of Science, (2008) 104 2 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0038-23532008000400001 (Accessed 26 April 2022).

[55] Twardowska I. and Szczepanska J. (2002). Solid waste: terminological and long-term environmental risk assessment problems exemplified in a power plant fly ash study. Sci. Tot. Environ. 285, 29–51. 

[56] National Environmental Management: Waste Act Amendment Act 2014 (Act No. 26 of 2014).

[57] Section 1(i) National Environmental Management: Waste Act Amendment Act 2014 (Act No. 26 of 2014).

[58] Dlamini, S., Simatele, M., & Kubanza, M. (2019). Municipal solid waste management in South Africa: From waste-to-energy recovery through waste-to-energy technologies in Johannesburg. Local Environment, 24(3) 249–257. doi:10.1080/13549839.2018.1561656

[59] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 36.

[60] Ibid, para 38.

[61] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 41

[62] Ibid.

[63] Section 1(b)(i) to (iv) of National Environmental Management: Waste Act 2008 (Act No. 59 of 2008).

[64] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 41.

[65] National Environmental Management: Waste Act 2008 (Act No. 59 of 2008).

[66] National Environmental Management: Waste Amendment Act 2014 (Act. 26 of 2014).

[67] Oelofse, S.H.H. & Godfrey, L. ‘Defining waste in South Africa: Moving beyond the age of “waste”.’ South African Journal of Science, (2008) 104 9 http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0038-23532008000400001 (Accessed 26 April 2022).

[68] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 42.

[69] Section 2 of National Environmental Management Act, 1998 (Act No. 107 of 1998).

[70] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020) para 41.

[71] Minister of Environmental Affairs & Another v ArcelorMittal South Africa Limited (Case no 342/2019) [2020] ZASCA 40 (17April 2020).

[72] Section 2 of National Environmental Management: Waste Act 2008 (Act No. 59 of 2008).

[73] M Kidd ‘Greening the Judiciary’ 2006 (3) PER, 1.

[74] M Kidd ‘Greening the Judiciary’ 2006 (3) PER/PELJ 13.

[75] Ibid 1.