Why is the definition of ‘waste’ important? Waste is regulated in South Africa by the National Environmental Management: Waste Act (the Act). When a company produces waste (as defined in the Act), that company must ensure that it complies with the provisions of the Act. Non-compliance with the provisions of the Act can result in an administrative fine and/or criminal sanctions. Therefore, it is important to understand the definition of waste for two reasons. Firstly, to understand if your company produces waste (as defined in the Act). Secondly, to understand how to ensure that your company is compliant with the provisions of the Act if it does produce waste.  

Prior to 2014, the definition of waste included a product whether or not that product could be recycled, and only excluded that product from the definition of waste after recycling had taken place. The practical effect of this definition was that a waste producer had to comply with the provisions of the Act until such time as the waste had been recycled.

The 2014 Amendment Act altered the definition of waste to define waste as, ‘any unwanted abandoned, rejected, disposed of, or discarded substance, material or object. Alternatively, intended or required to be disposed of or discarded by the holder of such substance, material, or object or regardless of the ability for such substance, object, or material to be re-used, recovered, or recycled.’

The most important element of the 2014 definition emanates from the use of the word ‘unwanted’. The use of the word ‘unwanted’ allows waste producers who are (for example) temporarily stockpiling waste (prior to selling the waste to a third party at a later stage) to legally avoid compliance with the provisions of the Waste Act because the waste is not ‘unwanted’ due to the economic value the waste holds to the waste producer. This definition of waste is still legally applicable.

On 24 June 2022, the National Environmental Management Amendment Bill was passed (the 2022 amendment Act). It is not yet in effect and will only come into effect on a date to be proclaimed by the President.

The 2022 amendment Act contains a variety of amendments to environmental legislation.  One of the notable amendments will require companies to reevaluate their legal compliance with the latest amendment to the definition of waste.  

In terms of the amendment Act, the definition of ‘waste’ is: (a) any substance, material or object— (i) that the generator of that substance, material or object has no further use for within its own processes, whether or not it has any commercial value for the generator, but which can be re-used, recycled, recovered or traded in by any person; or (ii) that is rejected, abandoned, discarded or disposed of, either temporarily or permanently, or is intended to be discarded or disposed of by the generator of that substance, material or object, regardless of whether or not that substance, material or object has any commercial value for the generator or can be re-used, recycled, recovered or traded in by any person.’

This new definition no longer allows waste producers to rely on the fact that waste has commercial value (at the time that the waste was created or at a later stage) and is “wanted” as grounds to avoid compliance with the Waste Act.

The new definition contained in the 2022 Amendment Act appears to be an effort to overcome the Supreme Court of Appeal decision in the Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited  case which held, with respect to the 2014 amendment Act definition, that the definition of waste is ‘clear and unequivocal’ in providing that if a substance, object or material is not unwanted, rejected, abandoned, discarded or disposed of, then it cannot be said to be waste in terms of the definition included in the 2014 amendment Act.

At first glance the new definition seems like an unnecessary restriction which appears to be out of alignment with both the object of the Waste Act and the current National Waste Management Strategy (NWMS). The Waste Act and the NWMS focus on reducing waste streams and disposal of waste by encouraging the classification of material as waste as a last resort and encouraging holders to extract as many products as possible out of it before only the residue (which has no further use or value) is disposed of.

Companies must ensure that they have a thorough understanding of the definition of waste to ensure that they are able to avoid non-compliance with the provisions of the Waste Act and the penalties non-compliance attract.