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

Aquarius Platinum operated a mining business at Kroondal in the North West Province and required various statutory authorisations to establish a new tailings storage facility (West-West Pit). It obtained environmental authorisation in March 2013 and ministerial approval in June 2013, but the Department of Water and Sanitation failed to decide on its water licence application. Meanwhile, Parliament amended the National Environmental Management Act through the National Environmental Management Laws Amendment Act 25 of 2014 (Environmental Amendment Act), which introduced new requirements for managing mining tailings. These amendments required supporting regulations to be implemented. The President assented to and published the Environmental Amendment Act on 2 June 2014. Section 32 of the Act provided it would come into force three months after publication (i.e., September 2014). However, the necessary regulations were not made by the Minister of Environmental Affairs within that three-month period, creating a regulatory vacuum when the Act came into force. Aquarius challenged the President's decision to publish the Act in the absence of regulations as irrational.

• Whether the President's decision to publish an Act of Parliament was irrational when the supporting regulations necessary for implementation had not been made
• Whether the President had a duty to ensure that regulations would be in place before publishing an Act where the Act itself determined it would come into force three months after publication
• The proper interpretation of section 32 of the Environmental Amendment Act read with section 81 of the Constitution regarding the timing of publication
• Whether the rationality principle established in Pharmaceutical Manufacturers Association applied to this publication scenario

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

The binding legal principles established are: (1) Publication of an Act under section 81 of the Constitution is a peremptory requirement that must be performed promptly after Presidential assent, irrespective of whether the Act comes into force immediately or on a future date. (2) The duty to assess whether it is appropriate to bring an Act into operation arises only where: (a) the Act authorises the President to determine the commencement date; (b) the Act provides it comes into force upon publication; or (c) the Act is silent on commencement and the default position in section 81 applies. (3) Where an Act stipulates it will come into force at a specified period after publication (as determined by Parliament itself), the President has no duty to ensure supporting regulations are in place before publication, provided there is no reason to believe the responsible Minister will fail to make the regulations within the prescribed timeframe. (4) In such cases, publication may rationally precede the making of regulations, as the legislative scheme contemplates the delayed commencement specifically to allow time for regulatory preparation. (5) The power to publish legislation for the purpose of notification does not carry the same rationality assessment as the power to bring legislation into immediate operation.

The Court made strong observations about the Minister of Environmental Affairs' conduct, noting she was solely to blame for the regulatory vacuum that resulted from her failure to make the necessary regulations within the three-month period prescribed by Parliament. The Court observed that: (1) The Minister's failure to provide any explanation for this omission, despite being cited as a party, warranted the inference she had no plausible explanation. (2) This failure had serious implications for upholding the Constitution and the rule of law, undermining both the legislative process and the operation of legislation. (3) The Minister had been involved in introducing the Bill to Parliament and determining that three months was adequate time for making regulations, making the failure more egregious. (4) Every Minister carries an obligation to uphold the Constitution and respect rights in the Bill of Rights, including the right to environmental protection under section 24. (5) When it became clear regulations would not be completed in time, 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. (6) The omission created a lacuna from September 2014 to July 2015 that may have had catastrophic environmental consequences. The Court did not need to determine whether the President ever has a duty to consider whether regulations would be in place where an Act determines its own future commencement date, as there was no suggestion the President had reason to doubt the regulations would be ready.

This case clarifies the constitutional framework for publication and commencement of legislation under section 81 of the Constitution. It establishes important distinctions regarding when the President has a duty to assess whether circumstances are appropriate for bringing legislation into force. The judgment distinguishes between situations where publication itself triggers commencement versus where Parliament prescribes a delayed commencement date. It affirms that where legislation provides for commencement at a specified period after publication, the publication does not need to be delayed until all implementing regulations are in place—the expectation is that the responsible Minister will fulfil their duty to make regulations within the prescribed timeframe. The case also emphasizes ministerial accountability for fulfilling legislative obligations and upholding constitutional duties, particularly regarding environmental protection. It demonstrates that failure by a Minister to make necessary regulations timeously constitutes a serious dereliction of duty that undermines the rule of law, but such ministerial failure does not render the President's prior publication irrational where the legislative scheme contemplated the sequence of events.