Minister of Environmental Affairs v ArcelorMittal SA Ltd

Environmental law protection and legislation provides for, inter alia, ‘the licensing and control of waste management activities’; ‘the remediation of contaminated land’; and for ‘compliance and enforcement’ measures.  

‘This appeal is about the protection of the environment against degradation and its attendant ill effects on humans and the ecosystem as well as the interpretation of the relevant regulatory statutory framework. It is also concerned with the powers and obligations of the environmental authorities which fall under the auspices of the Department to regulate activities that may have a substantial detrimental impact on the environment.” [para 3]

Essence

Environmental law protection and SCA confirmed that a waste management licence was not required for [not] unwanted or rejected or abandoned slag.

Decision

(SCA 342/2019) [2020] ZASCA 40 (17 April 2020)

Order:

1 The appeal is dismissed with costs, including the costs of two counsel.
2 The order of the High Court is supplemented to the extent reflected below:
‘The directive and compliance notice issued by the Deputy Director-General: Legal, Authorisation, Compliance and Enforcement on 7 December 2015 are reviewed and set aside.’

Judges

Petse DP (Swain, Mokgohloa and Mbatha JJA and Koen AJA concurring)

Heard: 21 February 2020

Delivered: 17 april 2020.

Reasons

‘In Giddey NO v JC Barnard and Partners, the Constitutional Court aptly explained this principle in the following terms (para 19):

‘the ordinary approach on appeal to the exercise of the discretion in the strict sense is that the appellate court will not consider whether the decision reached by the court at first instance was correct, but will only interfere in limited circumstances; for example, if it is shown that the decision has not been exercised judicially or has been exercised based on a wrong appreciation of the facts or wrong principle of law.’

And the judgment continued (para 22):

‘It would not be appropriate for an appellate court to interfere with that decision as long as it is judicially made, on the basis of the correct facts and legal principles. If the court takes into account irrelevant considerations or bases the exercise of its discretion on wrong legal principles, its judgment may be overturned on appeal. Beyond that, however, the decision of the court of first instance will be unassailable.’ [para 51]

Quotations from judgment

Note: Footnotes omitted and emphasis added

[insert]

Court summary

‘Environmental law – protection of environment – prohibition against undertaking identified activities without authorisation – nature and scope of the powers of environmental authorities – pre-existing activities prior to enactment of Environmental Conservation Act 73 of 1989 as well as National Environment Management Act 107 of 1998 (NEMA) that have not been declared as identified activities not subject to the strictures of NEMA and National Environment Management Waste Act 59 of 2008 (NEM:WA) – Basic Oxygen Furnace slag that is not unwanted or rejected or abandoned not constituting waste as defined in NEM:WA – waste management licence in terms of s 49(1)(a) of NEM:WA not required in order to deal with such slag.
1 The appeal is dismissed with costs, including the costs of two counsel.
2 The order of the High Court is supplemented to the extent reflected below:
‘The directive and compliance notice issued by the Deputy Director-General: Legal, Authorisation, Compliance and Enforcement on 7 December 2015 are reviewed and set aside.’”