Retail Motor Industry Organisation and Another v Minister of Water and Environmental Affairs and Another

The National Environmental Management: Waste Act 59 of 2008 empowers the Minister of Water and Environmental Affairs to approve industry waste management plans submitted by private persons or bodies. REDISA (the second respondent) submitted a waste tyre management plan which was approved by the Minister (first respondent) and published in July 2012 (the July plan). The appellants (RMI and Circuit Fitment CC) challenged its validity and obtained an interim interdict from Tuchten J on the basis that the July plan contained an item (15.1 dealing with waste reduction targets) that had not been included in the version published for public comment. The Minister withdrew the July plan and approved an amended plan in November 2012 (the November plan) which was identical to the July plan but without item 15.1. The appellants then brought an urgent application before Bam AJ seeking declaratory relief that the Minister's withdrawal was a nullity and that the November plan approval be set aside. Bam AJ dismissed the application. The appellants appealed with leave.

• Whether the Minister was functus officio in relation to the July plan and thus unable to withdraw it
• Whether the November plan required a fresh public participation process
• Whether the plan was invalid for not containing certain information required by the Waste Tyre Regulations
• Whether only tyre producers may submit plans to the Minister
• Whether the plan could validly regulate solid tyres in addition to pneumatic tyres

The appeal was dismissed with costs, including costs of two counsel. The order of the court below was amended to provide that every reference to solid tyres in REDISA's Integrated Industry Waste Tyre Management Plan published in Government Notice 988 in Government Gazette 35927 of 30 November 2012 be set aside.

Approved industry waste management plans under the National Environmental Management: Waste Act 59 of 2008 are instruments of subordinate legislation, not individual administrative decisions. The functus officio principle does not apply to subordinate legislation by virtue of s 10(3) of the Interpretation Act 33 of 1957, which empowers the maker of subordinate legislation to rescind, revoke, amend or vary such legislation. Where an amended plan is identical to the version that underwent public participation save for the removal of an item that was not subjected to that process, no fresh public participation process is required. Section 28 of the Waste Act does not restrict who may submit industry waste management plans - any person may draft and submit such a plan for Ministerial approval. Where portions of subordinate legislation are ultra vires the empowering legislation, those portions may be severed if the good can be separated from the bad, the good is not dependent on the bad, and what remains carries out the main object of the instrument.

The court noted that the approved plan imposes obligations on subscribers rather than vesting rights in them - this is an indication that the functus officio principle may not apply. The court commented that the out-sourcing of the drafting of subordinate legislation to private individuals is an example of 'negotiated rulemaking'. The court expressed doubt whether the failure to include a required item in a plan would necessarily invalidate the entire plan. The court declined to comment on whether the distinction drawn in the regulations between pneumatic and solid tyres was a sensible one, noting that the wisdom of legislative choices is not the subject matter of judicial review, though the law does protect against 'stupid by-laws or regulations, however well intended, if their effect is sufficiently outrageous' (citing Sinovich v Hercules Municipal Council 1946 AD 783).

This judgment clarifies important principles in South African administrative and environmental law. It establishes that approved industry waste management plans under the National Environmental Management: Waste Act constitute subordinate legislation rather than individual administrative decisions. This has significant implications for the application of the functus officio principle - administrators can withdraw and amend such plans. The judgment demonstrates the courts' flexibility in applying the severability doctrine to preserve valid portions of subordinate legislation while excising invalid parts. It also clarifies that the Waste Act does not restrict who may draft and submit industry waste management plans - the focus is on effective waste management rather than the identity of the drafter. The case illustrates the constitutional imperative under s 24 of managing waste in an environmentally sound manner and the Minister's obligations to facilitate this. It also confirms that Ministers retain broad discretion in approving plans and are not rigidly bound by every requirement set out in regulations.