STUDY UNIT 1
ENVIRONMENTAL LAW FOR ENGINEERS
The Constitution of the Republic of South Africa Act 108 of 1996
National Water Act 36 of 1998
National Environmental Management Act 107 of 1998
National Environmental Management Air Quality Act 39 of 2004
National Waste Act 36 of 1998
Table of Content
1.1
INTRODUCTION ........................................................................................................ 3
1.2
The Constitution of the Republic of South Africa, Act 108 of 1996 ............................. 3
1.2.1 Chapter 2, Bill of Rights Section 24 ............................................................................. 3
1.3
NATIONAL WATER ACT 36 OF 1998 ........................................................................ 4
1.3.1
Chapter 1 – Interpretation and Fundamental Principles ................................................... 4
1.3.2
Chapter 3 – Protection of Water Resources .................................................................... 5
1.3.3
Chapter 4 – Use of Water ................................................................................................ 7
1.4
National Environmental Management Act 107 of 1998 ............................................... 9
1.4.1 Chapter 1 – National Environmental Management Principles ............................................... 9
1.4.2 Chapter 5 – Integrated Environmental Management .......................................................... 11
1.4.3 Chapter 7 – Compliance, Enforcement and Protection ....................................................... 11
1.5
National Environmental Management Air Quality Act 39 of 2004 ..............................15
1.5.1
1.6
Chapter 1 – Interpretation and Fundamental Principles ................................................. 15
National Environmental Management Waste Act 59 of 2008 .....................................15
1.6.1
Chapter 1 – Interpretation and Fundamental Principles ................................................. 15
1.6.1.1 Definitions ....................................................................................................................... 16
1.6.2
Chapter 2 - National Waste Management Strategy, Norms and Standards ................... 18
1.6.3
Chapter 3 - Institutional and Planning Matters ............................................................... 18
1.6.4
Chapter 4 - Waste Management Measures ................................................................... 18
List of Figures
Figure 1: South Africa Legislation Framework ................................................................................... 2
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SPECIFIC OUTCOME
Introduce learners to the principles and guidelines within Environmental Act 108 of
1996 of the constitution of South Africa
LEARNING OUTCOMES
By the end of this theme, you should be able to demonstrate your ability to:
➢
Explain and Analyse the Environmental Act in terms of Environmental law and
integrated environmental management in South Africa;
➢
Interpret the stated legislation accurately;
➢
Identify areas on which the given legislation is violated and provide the appropriate
remedy;
Figure 1: South Africa Legislation Framework
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1.1 INTRODUCTION
The South African Constitution Act 108 of 1996 is the supreme law of the country and all
other legislation in the Republic of South Africa must comply with it. Section 24 is important
in the environmental context since it describes the general right to an environment that is
not detrimental to a person’s health or well-being.
The constitutional environmental right not only affords every person the entitlement to enjoy
a right to an environment that is not harmful to their health and well-being, it also placed a
constitutional mandate on government to protect the environment through reasonable
legislative and other measures that:
•
•
•
prevent pollution and ecological degradation
promote conservation; and
secure ecological sustainable development and the use of natural resources while
promoting justifiable economic and social development
To fulfil this constitutional mandate, government agencies over the last decade have
revised and promulgated various laws pertaining to a range of areas including
environmental management, environmental impact assessment, air quality, biodiversity,
waste management, mining, forestry and water management.
1.2 The Constitution of the Republic of South Africa, Act 108 of 1996
1.2.1 Chapter 2, Bill of Rights Section 24
Section 24 states that:
Everyone has the right –
(a) To an environment that is not harmful to their health or well-being; and
(b) To have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that –
(i) Prevent pollution and ecological degradation;
(ii) Promote conservation; and
(iii) Secure ecologically sustainable development and use of its natural resources
while promoting justifiable economic and social development.
The right contained in Section 24(a) is comprehensive. However, our courts still must define
the precise extent of this right. The “health” or “well-being” of people covers a wide field.
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1.3 NATIONAL WATER ACT 36 OF 1998
1.3.1 Chapter 1 – Interpretation and Fundamental Principles
“pollution” means the direct or indirect alteration of the physical, chemical or biological
properties of a water resource so as to make it:
(a) less fit for any beneficial purpose for which it may reasonably be expected to be
used; or
(b) harmful or potentially harmful:
(aa) to the welfare, health or safety of human beings;
(bb) to any aquatic or non-aquatic organisms;
(cc) to the resource quality; or
(dd) to property;
“watercourse” means:
(a) a river or spring;
(b) a natural channel in which water flows regularly or intermittently;
(c) a wetland, lake or dam into which, or from which, water flows; and (d) any collection
of water which the Minister may, by notice in the Gazette, declare to be a watercourse,
and a reference to a watercourse includes, where relevant, its bed and banks;
Section 4; Entitlement to water use
(1) A person may use water in or from a water resource for purposes such as reasonable
domestic use, domestic gardening, animal watering, firefighting and recreational use, as set
out in Schedule 1.
(2) A person may continue with an existing lawful water use in accordance with section 34.
(3) A person may use water in terms of a general authorisation or licence under this Act.
(4) Any entitlement granted to a person by or under this Act replaces any right to use water
which that person might otherwise have been able to enjoy or enforce under any other law:
(a) to take or use water;
(b) to obstruct or divert a flow of water;
(c) to affect the quality of any water;
(d) to receive any particular flow of water;
(e) to receive a flow of water of any particular quality; and
(f) to construct, operate or maintain any waterwork.
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1.3.2 Chapter 3 – Protection of Water Resources
Part 3: The Reserve
Part 3 deals with the Reserve, which consists of two parts – the basic human needs reserve
and the ecological reserve. The basic human needs reserve provides for the essential
needs of individuals served by the water resource in question, and includes water for
drinking, for food preparation and for personal hygiene. The ecological reserve relates to
the water required to protect the aquatic ecosystems of the water resource. The Reserve
refers to both the quantity and quality of the water in the resource, and will vary depending
on the class of the resource.
Part 4: Pollution prevention
Section 19 deals with pollution prevention and in particular the situation where pollution of a
water resource occurs or might occur as a result of activities on land. The person who owns
controls, occupies or uses the land in question is responsible for taking measures to
prevent pollution of water resources. If these measures are not taken, the catchment
management agency concerned may do whatever is necessary to prevent the pollution or
to remedy its effects, and to recover all reasonable costs from the persons responsible for
the pollution.
Section 19 - Prevention and remedying effects of pollution
(1) An owner of land, a person in control of land or a person who occupies or uses the land
on which:
(a) any activity or process is or was performed or undertaken; or
(b) any other situation exists, which causes, has caused or is likely to cause pollution of a
water resource, must take all reasonable measures to prevent any such pollution from
occurring, continuing or recurring.
(2) The measures referred to in subsection (1) may include measures to:
(a) cease, modify or control any act or process causing the pollution;
(b) comply with any prescribed waste standard or management practice;
(c) contain or prevent the movement of pollutants;
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(d) eliminate any source of the pollution;
(e) remedy the effects of the pollution; and
(f) remedy the effects of any disturbance to the bed and banks of a watercourse.
Part 5: Emergency incidents
Part 5 deals with pollution of water resources following an emergency incident, such as an
accident involving the spilling of a harmful substance that finds or may find its way into a
water resource. The responsibility for remedying the situation rests with the person
responsible for the incident or the substance involved. If there is a failure to act, the relevant
catchment management agency may take the necessary steps and recover the costs from
every responsible person.
Section 20 - Control of emergency incidents
(1) In this section “incident” includes any incident or accident in which a substance:
(a) pollutes or has the potential to pollute a water resource; or
(b) has, or is likely to have, a detrimental effect on a water resource.
(2) In this section, “responsible person” includes any person who:
(a) is responsible for the incident;
(b) owns the substance involved in the incident; or
(c) was in control of the substance involved in the incident at the time of the incident.
(3) The responsible person, any other person involved in the incident or any other person
with knowledge of the incident must, as soon as reasonably practicable after obtaining
knowledge of the incident, report to:
(a) the Department;
(b) the South African Police Service or the relevant fire department; or
(c) the relevant catchment management agency.
(4) A responsible person must:
(a) take all reasonable measures to contain and minimise the effects of the incident;
(b) undertake clean-up procedures;
(c) remedy the effects of the incident and
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(d) take such measures as the catchment management agency may either verbally or
in writing direct within the time specified by such institution.
1.3.3 Chapter 4 – Use of Water
As this Act is founded on the principle that national government has overall responsibility for
and authority over water resource management, including the equitable allocation and
beneficial use of water in the public interest, a person is entitled to use water only if the use
is permissible under the Act. The various types of licensed and unlicensed entitlements to
use water are dealt with in detail.
Part 1: General principles
This part sets out general principles for regulating water use. Water use is defined broadly,
and includes taking and storing water, activities that reduce stream flow, waste discharges
and disposals, controlled activities (activities that impact detrimentally on a water resource),
altering a watercourse, removing water found underground for certain purposes, and
recreation. In general a water use must be licensed unless it is listed in Schedule I, is an
existing lawful use, is permissible under a general authorisation, or if a responsible authority
waives the need for a licence. The minister may limit the amount of water a responsible
authority may allocate. When drafting regulations the minister may differentiate between
water resources, classes of water resources and geographical areas.
Section 21 - Water use
For the purposes of this Act, water use includes:
(a) taking water from a water resource;
(b) storing water;
(c) impeding or diverting the flow of water in a watercourse;
(d) engaging in a stream flow reduction activity contemplated in section 36;
(e) engaging in a controlled activity identified as such in section 37(1) or declared
under section 38(1);
(f) discharging waste or water containing waste into a water resource through a pipe,
canal, sewer, sea outfall or other conduit;
(g) disposing of waste in a manner which may detrimentally impact on a water
resource;
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(h) disposing in any manner of water which contains waste from, or which has been
heated in, any industrial or power generation process;
(i) altering the bed, banks, course or characteristics of a watercourse;
(j) removing, discharging or disposing of water found underground if it is necessary for
the efficient continuation of an activity or for the safety of people; and
(k) using water for recreational purposes.
Part 2: Considerations, conditions and essential requirements of general
authorisations and licences
This part deals with matters relevant to all general authorisations and licences issued under
the Act. It guides responsible authorities in exercising their discretion to issue and to attach
conditions to general authorisations and licences. It also sets out the essential features of
licences, such as effective periods, purposes and places for which they may be issued, and
the nature of conditions that may be attached to them. Granting a licence does not imply
any guarantee regarding the availability or quality of the water it covers.
Part 3: Existing lawful water uses
This part permits the continuation, under certain conditions, of an existing water use derived
from a law repealed by this Act. An existing lawful water use, with any conditions attached,
is recognised but may continue only to the extent that it is not limited, prohibited or
terminated by this Act. No licence is required to continue with an existing lawful water use
until a responsible authority requires a person claiming such an entitlement to apply for a
licence. If a licence is issued, it becomes the source of authority for the water use. If a
licence is not granted, the use is no longer permissible.
Part 4: Stream flow reduction activities
This part allows the minister, after public consultation, to regulate land-based activities that
reduce stream flow by declaring such activities to be stream-flow reduction activities.
Whether or not an activity is declared as such depends on various factors, such as the
extent of stream flow reduction, its duration, and its impact on any relevant water resource
and on other water users. The control of forestry for its impact on water resources, currently
exercised in terms of the Forest Act, is now exercised under this part.
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Part 5: Controlled activities
This part allows the minister to regulate activities having a detrimental impact on water
resources by declaring them to be controlled activities. Four such activities – irrigation using
waste or water containing waste from certain sources, modification of atmospheric
precipitation, altering the flow regime of a water resource as a result of power generation,
and aquifer recharge using waste or water containing waste – are identified in the Act as
controlled activities. Provision is made for the Minister to declare other controlled activities
as the need arises, but in these cases public consultation is required. Following the
identification or declaration of a controlled activity, an authorisation for that particular
category of activity is required under this Act.
1.4 National Environmental Management Act 107 of 1998
1.4.1 Chapter 1 – National Environmental Management Principles
The National Environmental Management Act (NEMA) creates the fundamental legal
framework that gives effect to the environmental right guaranteed in Section 24 of the
Constitution of the Republic of South Africa, 108 of 1996. NEMA sets out the fundamental
principles that apply to environmental decision making, some of which derive from
international environmental law and others from the Constitution.
This Act introduces cooperative governance of environmental matters by establishing the
necessary governmental institutions that will ensure that environmental protection is
implemented properly.
NEMA reconfirms the state’s trusteeship of the environment on behalf of the country’s
inhabitants. NEMA introduces a far-reaching general duty of care to prevent, control and
rehabilitate the effect of significant pollution and environmental degradation, including
historic pollution and environmental degradation. It makes it a criminal offence to cause
significant pollution or environmental degradation. Similarly, it dictates the duty of care to
address emergency incidents of pollution. Managers as well as directors of companies
found guilty of environmental crimes, among other, could be prosecuted for the conduct of
such legal persons. It provides employees with the right to refuse to perform
environmentally hazardous work, and whistle blowers are protected.
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According to the National Environmental Management Act, Act 107 of 1998:
“environment” means the surroundings within which humans exist and that are made up
of: –
(i) the land, water and atmosphere of the earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and
between them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the
foregoing that influence human health and well-being.
“Pollution” means any change in the environment caused by –
(i) substances
(ii) radioactive or other waves; or
(iii) noise, odours, dust or heat,
(iv) emitted from any activity, including the storage or treatment of waste or
substances, construction and the provision of services, whether engaged in by any
person or an organ of state, where that change has an adverse effect on human
health or well-being or on the composition, resilience and productivity of natural or
managed ecosystems or on materials useful to people, or will have such an effect in
the future.
The Act is based on certain rights enshrined in the Constitution, sustainable development
and a number of national environmental management principles such as the following:
Environmental management must place people and their needs at the forefront of its
concern and must serve their physical, psychological, developmental, cultural and social
interests equitably.
Development must be socially, environmentally and economically sustainable.
Sustainable development requires inter alia that pollution and degradation of the
environment are avoided, minimised or remedied.
Waste is avoided, minimised and re-used or recycled where possible or otherwise disposed
of in a responsible manner.
A risk-averse and cautious approach is applied, which takes into account the limits of
current knowledge about the consequences of decisions and actions.
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Negative impacts on the environment and on people’s environmental rights be anticipated
and prevented, or minimised and remedied.
Responsibility for the environmental health and safety consequences of a policy,
programme, project, product, process, service or activity exists throughout its life cycle.
The right of workers to refuse work that is harmful to human health or the environment and
to be informed of dangers must be respected and protected.
Decisions must be taken in an open and transparent manner, and access to information
must be provided in accordance with the law.
Global and international responsibilities relating to the environment must be discharged in
the national interest.
The costs of remedying pollution, environmental degradation and consequent adverse
health effects and of preventing, controlling or minimising further pollution, environmental
damage or adverse health effects must be paid for by those responsible for harming the
environment.
1.4.2 Chapter 5 – Integrated Environmental Management
The general objectives of IEM are to
•
promote the integration of the principles of environmental management set
out above into all decision-making that might have an effect on the
environment
•
identify, predict and evaluate the actual and potential impact on the
environment, socioeconomic conditions and cultural heritage, the risks and
consequences and alternatives and options for mitigation of activities, with a
view to minimising negative impacts, maximising benefits, and promoting
compliance with the principles of environmental management set out above
•
ensure that the effect of activities on the environment receives adequate
consideration before actions are taken in connection with them
1.4.3 Chapter 7 – Compliance, Enforcement and Protection
Section 28 - Duty of care and remediation of environmental damage
(1) Every person who causes, has caused or may cause significant pollution or degradation
of the environment must take reasonable measures to prevent such pollution or
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degradation from occurring, continuing or recurring, or, in so far as such harm to the
environment is authorised by law or cannot reasonably be avoided or stopped, to minimise
and rectify such pollution or degradation of the environment.
(3) The measures required in terms of subsection (1) may include measures to:
(a) investigate, assess and evaluate the impact on the environment;
(b) inform and educate employees about the environmental risks of their work and the
manner in which their tasks must be performed in order to avoid causing significant
pollution or degradation of the environment;
(c) cease, modify or control any act, activity or process causing the pollution or
degradation;
(d) contain or prevent the movement of pollutants or the causant of degradation;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation
Section 29 - Protection of workers refusing to do environmentally hazardous work
(1) Notwithstanding the provisions of any other law, no person is civilly or criminally liable or
may be dismissed, disciplined, prejudiced or harassed on account of having refused to
perform any work if the person in good faith and reasonably believed at the time of the
refusal that the performance of the work would result in an imminent and serious threat to
the environment.
(2) An employee who has refused to perform work in terms of subsection (1) must as soon
thereafter as is reasonably practicable notify the employer either personally or through a
representative that he or she has refused to perform work and give the reason for the
refusal.
(3) Subsection (1) applies whether or not the person refusing to work has used or
exhausted any other applicable external or internal procedure or otherwise remedied the
matter concerned.
(4) No person may advantage or promise to advantage any person for not exercising his or
her right in terms of subsection (1).
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(5) No person may threaten to take any action contemplated by subsection (1) against a
person because that person has exercised or intends to exercise his or her right in terms of
subsection (1).
Section 30 - Control of emergency incidents
(1) In this section:
(a) “incident” means an unexpected sudden occurrence, including a major emission, fire or
explosion leading to serious danger to the public or potentially serious pollution of or
detriment to the environment, whether immediate or delayed;
(b) “responsible person” includes any person who:
(i) is responsible for the incident;
(ii) owns any hazardous substance involved in the incident; or
(iii) was in control of any hazardous substance involved in the incident at the time of
the incident;
(c) “relevant authority” means:
(i) a municipality with jurisdiction over the area in which an incident occurs;
(ii) a provincial head of department or any other provincial official designated for that
purpose by the MEC in a province in which an incident occurs;
(iii) the Director-General;
(iv) any other Director-General of a national department.
(3) The responsible person or, where the incident occurred in the course of that person’s
employment, his or her employer must forthwith after knowledge of the incident, report
through the most effective means reasonably available:
(a) the nature of the incident;
(b) any risks posed by the incident to public health, safety and property;
(c) the toxicity of substances or by-products released by the incident; and
(d) any steps that should be taken in order to avoid or minimise the effects of the incident
on public health and the environment to:
(i) the Director-General;
(ii) the South African Police Services and the relevant fire prevention service;
(iii) the relevant provincial head of department or municipality; and
(iv) all persons whose health may be affected by the incident.
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(4) The responsible person or, where the incident occurred in the course of that person’s
employment, his or her employer, must, as soon as reasonably practicable after knowledge
of the incident:
(a) take all reasonable measures to contain and minimise the effects of the incident,
including its effects on the environment and any risks posed by the incident to the
health, safety and property of persons;
(b) undertake cleanup procedures;
(c) remedy the effects of the incident;
(d) assess the immediate and long-term effects of the incident on the environment and
public health.
(5) The responsible person or, where the incident occurred in the course of that person’s
employment, his or her employer, must, within 14 days of the incident, report to the
Director-General, provincial head of department and municipality such information as is
available to enable an initial evaluation of the incident, including:
(a) the nature of the incident;
(b) the substances involved and an estimation of the quantity released and their
possible acute effect on persons and the environment and data needed to assess
these effects;
(c) initial measures taken to minimise impacts;
(d) causes of the incident, whether direct or indirect, including equipment, technology,
system, or management failure; and
(e) measures taken and to be taken to avoid a recurrence of such incident.
(6) A relevant authority may direct the responsible person to undertake specific measures
within a specific time to fulfil his or her obligations under subsections (4) and (5): Provided
that the relevant authority must, when considering any such measure or time period, have
regard to the following:
(a) the principles set out in section 2;
(b) the severity of any impact on the environment as a result of the incident and the
costs of the measures being considered;
(c) any measures already taken or proposed by the person on whom measures are to
be imposed, if applicable;
(d) the desirability of the State fulfilling its role as custodian holding the environment in
public trust for the people;
(e) any other relevant factors.
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1.5 National Environmental Management Air Quality Act 39 of 2004
1.5.1 Chapter 1 – Interpretation and Fundamental Principles
The object of the Air Quality Act is to protect the environment by providing reasonable
measures for:
•
protecting and enhancing the quality of air in the Republic
•
preventing air pollution and ecological degradation
•
securing ecologically sustainable development while promoting justifiable
economic and social development
•
The Act further provides for national norms and standards regulating air
quality monitoring, management and control by all spheres of government.
It also provides for specific air quality measures. The following provides a brief
outline of key provisions of the Act. It should be noted that to be able to understand the
Act fully, it should be read in its entirety.
1.6 National Environmental Management Waste Act 59 of 2008
1.6.1 Chapter 1 – Interpretation and Fundamental Principles
The objects of this Act are –
(a) to protect health, well-being and the environment by providing reasonable measures for –
(i) minimising the consumption of natural resources;
(ii) avoiding and minimising the generation of waste;
(iii) reducing, re-using, recycling and recovering waste;
(iv) treating and safely disposing of waste as a last resort;
(v) preventing pollution and ecological degradation;
(vi) securing ecologically sustainable development while promoting justifiable
economic and social development;
(vii) promoting and ensuring the effective delivery of waste services;
(viii) remediating land where contamination presents, or may present, a significant risk
of harm to health or the environment; and
(ix) achieving integrated waste management reporting and planning;
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(b) to ensure that people are aware of the impact of waste on their health, well-being and
the environment;
(c) to provide for compliance with the measures set out in paragraph (a); and
(d) generally, to give effect to section 24 of the Constitution in order to secure an
environment that is not harmful to health and well-being.
The following provides a brief outline of key provisions of the Act. It should be noted that to
be able to understand the Act fully, it should be read in its entirety.
1.6.1.1 Definitions
The Act contains a list of definitions in Section 1, all of which must be considered when
assessing the application of the Act. However, for the purposes of this overview, it is
important to note the definition of waste. The definition is expansive and includes all types
of waste, whether or not that waste has economic value. However, the definition is qualified
by the inclusion of an “end-of-waste” provision so that the Act does not apply unnecessarily
to byproducts or waste that has been re-used, recycled or recovered.
In addition to the definition of waste, it should be noted that the other definitions make it
clear that the Act extends to all types of waste management technologies.
“waste” means any substance, whether or not that substance can be reduced, re-used,
recycled and recovered:
(a) that is surplus, unwanted, rejected, discarded, abandoned or disposed of;
(b) which the generator has no further use of for the purposes of production;
(c) that must be treated or disposed of; or
(d) that is identified as a waste by the Minister by notice in the Gazette, and includes waste
generated by the mining, medical or other sector, but:
(i) a by-product is not considered waste; and
(ii) any portion of waste, once re-used, recycled and recovered, ceases to be waste.
“General waste” means waste that does not pose an immediate hazard or threat to health
or to the environment, and includes:
(a) domestic waste;
(b) building and demolition waste;
(c) business waste; and
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(d) inert waste.
“Domestic waste” means waste, excluding hazardous waste, that emanates from premises
that are used wholly or mainly for residential, educational, health care, sport or recreation
purposes;
“building and demolition waste” means waste, excluding hazardous waste, produced
during the construction, alteration, repair or demolition of any structure, and includes rubble,
earth, rock and wood displaced during that construction, alteration, repair or demolition;
“business waste” means waste that emanates from premises that are used wholly or
mainly for commercial, retail, wholesale, entertainment or government administration
purposes;
“inert waste” means waste that:
(a) does not undergo any significant physical, chemical or biological transformation
after disposal;
(b) does not burn, react physically or chemically biodegrade or otherwise adversely
affect any other matter or environment with which it may come into contact; and
(c) does not impact negatively on the environment, because of its pollutant content
and because the toxicity of its leachate is insignificant.
“hazardous waste” means any waste that contains organic or inorganic elements or
compounds that may, owing to the inherent physical, chemical or toxicological
characteristics of that waste, have a detrimental impact on health and the environment;
“incineration” means any method, technique or process to convert waste to flue gases and
residues by means of oxidation;
The Act applies to all waste unless specifically excluded in the Act. Section 4 identifies four
waste categories that fall outside the ambit of the Act because these wastes are regulated
by other legislation, namely –
(a) radioactive waste that is regulated by the Hazardous Substances Act, 15 of 1973, the
National Nuclear Regulator Act, 47 of 1999 and the Nuclear Energy Act, 46 of 1999
(b) residue deposits and residue stockpiles that are regulated by the Mineral and Petroleum
Resources Development Act, 28 of 2002
(c) the disposal of explosives that is regulated by the Explosives Act, 15 of 2003
(d) the disposal of animal carcasses that is regulated by the Animal Health Act, 7 of 2002
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1.6.2 Chapter 2 - National Waste Management Strategy, Norms and Standards
The Act seeks to ensure that there is at least clarity on the roles and obligations of the
different regulatory authorities and that the waste management function is executed
consistently across the different regulatory authorities. Chapter 2, part 2 sets out the
powers of national, provincial and local government.
1.6.3 Chapter 3 - Institutional and Planning Matters
National and provincial environmental departments must prepare integrated waste
management plans. Local government must prepare integrated waste management plans
as part of their integrated development plans.
(Sections 11–13. The purpose of these plans is to ensure that the status quo in respect of
waste management is identified and understood, and that implementation activities are
aligned.)
1.6.4 Chapter 4 - Waste Management Measures
Part 1: Priority wastes
The Minister may declare a waste to be a priority waste in terms of Section 14 where it
poses a threat to the environment because of the quantity or composition of the waste. The
waste may be hazardous or general waste. Once a waste is declared to be a priority waste
the specified measures must be complied with in respect of that waste. These measures
may include the preparation of industrial waste management plans, prohibitions on
generation, management measures, requirements regarding minimisation, storage,
treatment and disposal, and registration and monitoring.
14. Declaration of priority wastes
(1) The Minister may, by notice in the Gazette, declare a waste to be a priority waste if the
Minister on reasonable grounds believes that the waste poses a threat to health, well-being
or the environment because of the quantity or composition of the waste and:
(a) that specific waste management measures are required to address the threat; or
(b) that the imposition of specific waste management measures in respect of the waste may
improve reduction, re-use, recycling and recovery rates or reduce health and environmental
impacts.
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(2) The MEC may in writing request the Minister to declare a waste to be a priority waste in
the manner contemplated in subsection (1).
(3) If the declaration under subsection (1) or (2) of a waste as a priority waste is likely to
have a significant impact on the national economy, such declaration may only be made
after consultation with the Minister of Trade and Industry and the Minister of Finance.
(4) A notice under subsection (1) or (2) must specify the waste management measures that
must be taken.
(5) The measures contemplated in subsection (4) may include:
(a) a requirement for identified persons falling within a category of persons to prepare an
industry waste management plan in terms of section 28 in respect of the declared priority
waste;
(b) a prohibition on the generation of the priority waste;
(c) measures for the management of the priority waste;
(d) measures for the minimisation, storage, re-use, recycling and recovering, treatment and
disposal of the priority waste;
(e) requirements for the registration and monitoring of, and reporting on, priority waste; and
(f) any other measures that the Minister believes are necessary to manage the threat that is
presented by the waste or to achieve the objects of this Act.
15. Consequences of declaration of priority wastes
(1) No person may import, manufacture, process, sell or export a priority waste or a product
that is likely to result in the generation of a priority waste unless that waste or product
complies with:
(a) the waste management measures contemplated in section 14(4);
(b) an industrial waste management plan which has been submitted in accordance with the
requirements of a notice referred to section 28 or 29; or
(c) any other requirement in terms of this Act.
(2) No person may recycle, recover, treat or dispose of a priority waste unless it is in
accordance with this Act and the waste management measures contemplated in section
14(4).
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Part 2: General duty
The inclusion of a duty of care in Section 16 provides a benchmark of required behaviour by
all role-players in the waste management cycle and places an onus on these role-players to
ensure that their activities are conducted in accordance with sound environmental
practices. It also supplements provisions for liability in respect of specific situations by
imposing liability throughout most of the waste management cycle.
16. General duty in respect of waste management
(1) A holder of waste must, within the holder’s power, take all reasonable measures to:
(a) avoid the generation of waste and where such generation cannot be avoided, to
minimise the toxicity and amounts of waste that are generated;
(b) reduce, re-use, recycle and recover waste;
(c) where waste must be disposed of, ensure that the waste is treated and disposed of in an
environmentally sound manner;
(d) manage the waste in such a manner that it does not endanger health or the environment
or cause a nuisance through noise, odour or visual impacts;
(e) prevent any employee or any person under his or her supervision from contravening this
Act; and
(f) prevent the waste from being used for an unauthorised purpose.
(2) Any person who sells a product that may be used by the public and that is likely to result
in the generation of hazardous waste must take reasonable steps to inform the public of the
impact of that waste on health and the environment.
(3) The measures contemplated in this section may include measures to:
(a) investigate, assess and evaluate the impact of the waste in question on health or the
environment;
(b) cease, modify or control any act or process causing the pollution, environmental
degradation or harm to health;
(c) comply with any norm or standard or prescribed management practice;
(d) eliminate any source of pollution or environmental degradation; and
(e) remedy the effects of the pollution or environmental degradation.
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Part 3: Reduction, re-use, recycling and recovery of waste
17. Reduction, re-use, recycling and recovery of waste (1) Unless otherwise provided for in
this Act, any person who undertakes an activity involving the reduction, re-use, recycling or
recovery of waste must, before undertaking that activity, ensure that the reduction, re-use,
recycling or recovery of the waste:
(a) uses less natural resources than disposal of such waste; and
(b) to the extent that it is possible, is less harmful to the environment than the disposal of
such waste.
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