The National Environmental Management: Waste Act (Waste Act) is the foundational legislation that regulates waste management in South Africa. Section 1 of the Waste Act sets out a list of definitions which provide depth to the meaning of the sections of the Waste Act. One of the most important definitions contained in this section is the definition of waste. In essence, whether one needs to comply with the provisions of the Waste Act rests squarely on if the business creates ‘waste’.

It is essential for a business to identify if it creates waste because non-compliance with the Waste Act can result in fines of up to R10 million and/or imprisonment – and ignorance of the law is simply not a defendable answer. However, compliance is both a costly and time-consuming exercise so a business must understand where its manufacturing process places it in terms of compliance with the Waste Act.

The current definition of waste (in summary) provides for any substance, material or object, that is (or is intended to be) unwanted, rejected, abandoned, discarded or disposed of, whether or not such substance, material or object can be re-used, recycled or recovered.

It becomes clear from a reading of the above that the current definition of waste is subjective in nature because what may be considered waste by one business may not be considered waste by another. In 2020, the Supreme Court of Appeal decided the case of Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited (AMSA), which provides a good example of how the subjectivity of this definition practically impacts businesses.

In this case, a by-product of AMSA’s production process was Basic Oxygen Furnace (BOF) slag which was stockpiled by AMSA and later recycled for purchase by other companies that would use the recycled BOF slag in their own manufacturing processes. The SCA found that although the BOF slag was no longer useful for AMSA within its own manufacturing process, the BOF slag held economic value for AMSA which meant that it was not ‘unwanted’ and could not fall within the current definition of ‘waste’. This allowed AMSA to circumvent the need to obtain a waste management licence to stockpile the BOF slag (i.e. to comply with the Waste Act).  

The current definition of waste was unexpectedly amended in the recently published National Environmental Management Laws Amendment Act (NEMLAA). The amended definition of ‘waste’ reads as follows: waste is ‘any substance, material or object 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 and traded in by any person…’.

A very important distinction between the current definition and the amended definition of waste is that the amended definition has cast the net for compliance far wider than the previous definition. This is because the amended definition includes waste that a generator ‘no longer has a use within a generator’s own process for regardless of the fact that the waste possesses commercial value for that generator’. The result being that a waste generator is unable to circumvent compliance with the Waste Act by selling by-products that they no longer have use for in their own process, which was done by AMSA in the case discussed above.

On 26 June 2023, the Constitutional Court addressed this issue in the matter of South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others. The Constitutional Court found that there was a material difference between the current definition of waste and the amended definition of waste that would result in the need for many more businesses to comply with the Waste Act. The Constitutional Court further found that there was insufficient consultation on the amended definition which resulted in this definition being declared unconstitutional and invalid. It follows that the current definition of ‘waste’ will remain in force, even when the NEMLAA comes into effect.

This decision holds significant importance for businesses that were making the necessary preparations to ensure compliance after the amended definition of waste came into effect – which will no longer be necessary. It is important to note that in response to the recent Constitutional Court decision, the consultation process may be started afresh by the National Assembly and Portfolio Committee, which would once again bring this contentious definition to the fore.