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

Aquarius Platinum (SA) (Pty) Ltd operated a mining business at Kroondal in the North West Province and required various statutory authorisations (water licence, environmental authorisation, and ministerial approval) to establish a new tailings storage facility called West-West Pit. Parliament amended the National Environmental Management Act through the National Environmental Management Laws Amendment Act 25 of 2014 (Environmental Amendment Act) to streamline authorisation requirements for storage and management of mining tailings. These amendments required regulations to be made by the Minister of Environmental Affairs for implementation. The President assented to and signed the Environmental Amendment Act, and published it on 2 June 2014. Section 32 of the Act stipulated it would come into effect three months from the date of publication (i.e., 2 September 2014). However, the necessary regulations were not made within this three-month period or even by the time the High Court heard the matter in May 2015. This created a vacuum as the new Act repealed old legislation when it came into force but provisions meant to replace the old legislation could not be implemented without supporting regulations. Aquarius challenged the President's decision to publish the Act as irrational, given the absence of regulations.

• Whether the President's decision to publish the Environmental Amendment Act was irrational because it was done in the absence of regulations necessary for implementing the Act
• Whether publication of an Act that brings it into force must be rationally connected to the circumstances enabling implementation
• Whether section 32 of the Environmental Amendment Act, read with section 81 of the Constitution, required the President to ensure regulations were in place before publication
• Whether the three-month delay between publication and commencement contemplated time for making necessary regulations

The appeal was upheld. The High Court's order declaring the President's publication irrational and setting it aside was itself set aside and replaced with an order dismissing the application.

Where an Act of Parliament prescribes that it will come into effect at a specified time after publication (rather than upon publication or on a date to be determined by the President), the President is not under a duty to assess whether implementation will be feasible at the time of commencement before publishing the Act. The duty to bring legislation into force and the corresponding obligation to determine whether circumstances permit implementation only arise where: (1) the Act authorizes the President to determine the date of coming into effect; (2) the Act comes into force on the date of publication; or (3) the Act is silent on commencement and section 81 of the Constitution applies. Where the legislative scheme contemplates that publication may precede the making of necessary regulations, and allows time between publication and commencement for such regulations to be made, it is not irrational for the President to publish in the absence of those regulations, provided the President has no reason to believe they will not be made in time. Section 81 of the Constitution imposes a duty to publish Acts promptly after assent and signing, and this duty is distinct from the question of when an Act comes into operation.

The Court made strong observations about the Minister of Environmental Affairs' failure to make the necessary regulations within the three-month period contemplated by section 32. Jafta J stated that the Minister alone was to blame for putting the Act into force without necessary regulations, not the President. The Court noted that every Minister carries an obligation to uphold the Constitution and respect and promote rights in the Bill of Rights, including the right to environmental protection under section 24. The Minister's failure to make regulations undermined the legislative process and thwarted the operation of legislation, creating a lacuna with potentially catastrophic consequences from September 2014 to July 2015 (when regulations were finally published). The Court observed that when it became clear regulations would not be completed before the Act came into effect, the Minister should have taken steps to avoid the hiatus, such as applying to court to have the publication set aside (as President Mandela did in Pharmaceutical Manufacturers Association). The Court noted that the Minister provided no explanation for her failure despite being cited as a party and having introduced the Bill to Parliament herself, and inferred she had no plausible explanation.

This case clarifies the scope of the President's duties under section 81 of the Constitution when publishing Acts of Parliament. It establishes that where legislation itself determines the date of commencement (rather than leaving this to the President's determination), the President is not required to assess whether implementation is feasible at the time of publication, particularly where the legislation contemplates a delay between publication and commencement to allow for preparatory measures. The judgment reinforces the distinction between publication (a constitutional duty under section 81) and bringing legislation into force. It also emphasizes ministerial accountability for failing to fulfill legislative obligations, particularly in the context of environmental protection. The case demonstrates the Constitutional Court's approach to administrative rationality in the context of the legislative process and highlights that different constitutional actors (President vs Ministers) have distinct responsibilities in making legislation operational.