Minister of Environmental Affairs and Another v ArcelorMittal South Africa Limited

ArcelorMittal South Africa Limited (AMSA), a long‑established steel manufacturer, produced Basic Oxygen Furnace slag (BOF slag) as a by‑product of its steelmaking operations at Newcastle since the 1970s. BOF slag was either temporarily stockpiled and sold to third parties for agricultural and road construction use, or temporarily deposited at an on‑site disposal facility and later reclaimed, processed and sold. In 2015, the Deputy Director‑General of the Department of Environmental Affairs issued a compliance notice and directive under the National Environmental Management Act 107 of 1998 (NEMA), alleging that AMSA unlawfully operated a BOF slag disposal site and sold slag without the required waste management licences under the National Environmental Management: Waste Act 59 of 2008 (NEM:WA). AMSA objected and appealed internally, arguing that BOF slag was not ‘waste’ and that its disposal activities pre‑dated environmental licensing regimes. The Minister dismissed the appeal and objection. AMSA successfully reviewed these decisions in the High Court, leading to an appeal by the Minister and the Deputy Director‑General to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The order of the High Court was supplemented to expressly review and set aside the directive and compliance notice issued on 7 December 2015.

The case clarifies the interpretation of ‘waste’ under NEM:WA and affirms that by‑products with ongoing commercial value are not necessarily waste. It is significant for delineating the limits of environmental authorities’ powers over pre‑existing activities and for confirming that environmental legislation does not apply retrospectively without clear statutory authority. The judgment provides important guidance for industry and regulators on waste licensing requirements.