Minister for Environmental Affairs and Another v Aquarius Platinum (SA) (Pty) Ltd and Others

Aquarius Platinum operated a mining business and required various statutory authorisations, including environmental approvals, to store mining tailings. Parliament enacted the National Environmental Management Laws Amendment Act 25 of 2014 (NEMLAA), which amended environmental legislation and required new regulations for implementation. The President assented to and published the Act on 2 June 2014. Section 32 of the Act provided that it would come into operation three months after publication. When the Act came into force in September 2014, the necessary regulations were not yet promulgated, creating a regulatory gap. Aquarius challenged the President’s decision to publish the Act before the regulations were in place, arguing that the decision was irrational. The High Court agreed and set aside the publication, declaring it unconstitutional. The matter came before the Constitutional Court for confirmation of the High Court’s order and on appeal by the Minister for Environmental Affairs.

The appeal was upheld. The order of the High Court declaring the publication irrational and invalid was set aside and replaced with an order dismissing the application.

The case clarifies the constitutional distinction between the publication of legislation and the commencement of legislation. It confirms that the President has a constitutional duty to publish Acts promptly after assent and that publication may validly precede the making of regulations where Parliament has prescribed a commencement mechanism. The judgment limits the application of the rationality standard to cases where the President actively determines a commencement date.