Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited

ArcelorMittal South Africa Limited (AMSA) has manufactured steel products at its Newcastle operations since the 1970s. A by-product of steel manufacturing is Basic Oxygen Furnace slag (BOF slag), which AMSA either sold immediately to third parties ("current arisings") or temporarily deposited into its disposal site for later reclamation, processing and sale ("reclaimed slag"). The disposal site predated the Environmental Conservation Act 73 of 1989 (ECA), the National Environmental Management Act 107 of 1998 (NEMA), and the National Environmental Management: Waste Act 59 of 2008 (NEM:WA). In 2011, AMSA obtained both a decommissioning licence for its existing disposal site and a construction licence for a new site. Following inspections in 2013, the Deputy Director-General (DDG) issued a compliance notice and directive on 7 December 2015 requiring AMSA to cease disposal and sale of BOF slag unless AMSA and its customers held waste management licences (WMLs). The Minister dismissed AMSA's appeal and objection on 5 July 2016. AMSA successfully challenged this decision in the High Court.

• Whether AMSA was required to obtain waste management licences under NEM:WA for activities at its pre-existing BOF slag disposal site that commenced in the 1970s, before the enactment of the ECA, NEMA and NEM:WA
• Whether BOF slag (both 'current arisings' and 'reclaimed slag') constituted 'waste' as defined in section 1 of NEM:WA
• Whether the issuance of decommissioning and construction licences to AMSA in 2011 subjected AMSA to the requirements of NEMA and NEM:WA and extinguished its pre-existing rights
• Whether the DDG acted within his statutory powers in issuing the directive and compliance notice
• Whether the Minister correctly dismissed AMSA's appeal and objection
• Whether third parties purchasing BOF slag from AMSA required waste management licences
• Whether the High Court properly granted declaratory relief

The appeal was dismissed with costs, including costs of two counsel. The order of the High Court was supplemented to explicitly review and set aside the directive and compliance notice issued by the DDG on 7 December 2015 (which the High Court had inadvertently omitted from its order). The declaratory order that AMSA's existing BOF slag disposal site did not require a waste management licence for its lawful operation was upheld.

The binding legal principles established are: (1) Pre-existing waste disposal activities that lawfully commenced before the enactment of the ECA, NEMA and NEM:WA are not subject to licensing requirements under those Acts unless and until the Minister invokes section 80(4) of NEM:WA by gazette notice calling upon the operator to apply for a waste management licence. (2) Material that is not 'unwanted, rejected, abandoned, discarded or disposed of' does not constitute 'waste' within the definition in section 1 of NEM:WA. (3) Once waste is recycled or recovered, it ceases to be waste in terms of section 1(b) of NEM:WA. (4) The granting of decommissioning and construction licences for new facilities does not automatically extinguish pre-existing rights to continue operating lawful facilities established before the relevant environmental legislation came into force. (5) BOF slag that has commercial value and is sold to third parties, either immediately ('current arisings') or after reclamation and recycling ('reclaimed slag'), is not waste requiring waste management licences from either the seller or purchaser. (6) Environmental authorities must exercise their powers under NEMA and NEM:WA within the confines of the statutory framework and cannot impose licensing requirements where no statutory basis exists.

The Court made several non-binding observations: (1) It noted that AMSA's recycling activities actually promoted one of the principal objects of NEMA, namely protecting the environment from degradation by recycling waste rather than disposing of it. (2) The Court observed that to interpret section 80(4) as contended by the appellants would 'undermine the effectiveness of the NEM:WA' and would 'run counter' to proper statutory interpretation principles requiring sensible meanings that don't lead to 'insensible or unbusinesslike results'. (3) The Court commented that requiring AMSA to cease operations during construction of the new facility 'cannot be' the proper interpretation. (4) The Court noted that the terms 'current arisings' and 'reclaimed BOF slag' were coined by AMSA for operational reasons and 'there is nothing magical about these terms'. (5) The Court observed that section 20 of the ECA did not apply retrospectively, though this was no longer contested between the parties. (6) The Court emphasized the Constitutional Court's framework for statutory interpretation in Cool Ideas, stressing purposive interpretation, proper contextualization, and constitutional consistency.

This case is significant in South African environmental law as it clarifies: (1) the protection afforded to pre-existing activities that commenced before environmental legislation came into force; (2) the proper interpretation of 'waste' under NEM:WA, particularly the distinction between waste and recyclable materials with commercial value; (3) the limits of environmental authorities' powers to retrospectively impose licensing requirements on lawful pre-existing operations; (4) the principle that recycling activities align with NEMA's sustainable development objectives; (5) the application of section 80(4) of NEM:WA and its savings provisions; and (6) the need for environmental authorities to follow proper statutory procedures (gazette notices) before imposing new obligations on pre-existing operations. The judgment demonstrates judicial protection of legitimate commercial operations against overreach by environmental regulators, while maintaining the constitutional imperative of environmental protection.