The National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA Act) proposed to amend the definition of "waste" in the National Environmental Management: Waste Act 59 of 2008. Initial versions of the Bill (up to version "D") underwent extensive public participation from 2015 to 2020, including public hearings. However, in June 2021, the NCOP Select Committee introduced material amendments to the definition of "waste" without further public participation. The new definition (versions "E" and "F") radically expanded the scope of "waste" to include substances for which the generator has "no further use within its own processes, whether or not it has any commercial value," removing the previous requirement that waste be "unwanted, rejected, abandoned, discarded or disposed of." This change effectively reversed the Supreme Court of Appeal's decision in Minister of Environmental Affairs v ArcelorMittal South Africa Limited [2020] ZASCA 40. The amendments also introduced new definitions of "commercial value" and "trade in," as well as transitional provisions requiring compliance within 60 days. The applicants (representing the steel and fertilizer industries) requested further public participation opportunities but were ignored. The Bill was passed by both houses and assented to on 24 June 2022, but had not yet been proclaimed into operation.
1. It is declared that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in terms of sections 59(1)(a) and 72(1)(a) of the Constitution in respect of: (a) The amended definition of "waste" in section 61(k); (b) The new definition of "commercial value" in section 61(c); (c) The new definition of "trade in" in section 61(j); and (d) The transitional provision in section 88 of the National Environmental Management Laws Amendment Act 2 of 2022. 2. The said provisions are declared invalid and unconstitutional. 3. The first and second respondents are directed, jointly and severally, to pay the applicants' costs, including the costs of two counsel.
Material amendments to legislation during the legislative process trigger a constitutional obligation on Parliament to facilitate further public participation. An amendment is material where it: (1) fundamentally changes the substantive content and regulatory scope of the legislation; (2) brings persons or activities under regulatory control that were not previously regulated; (3) imposes significant new compliance burdens with serious consequences for non-compliance; and (4) affects the rights, interests or obligations of identifiable groups who had reasonable grounds to believe the earlier version would not apply to them. Sections 59(1)(a) and 72(1)(a) of the Constitution impose an obligation on the National Assembly and NCOP to facilitate public involvement in legislative processes, which requires providing meaningful opportunities for participation and taking measures to ensure people can take advantage of those opportunities. The standard is one of reasonableness, taking into account the nature and importance of the legislation and the intensity of its impact on the public. Where material amendments are introduced without affording affected parties a reasonable opportunity to make representations, Parliament fails to fulfill its constitutional obligation to facilitate public involvement, rendering the affected provisions invalid.
The Court noted that Parliament should be accorded a significant measure of discretion in determining how best to fulfill its duty to facilitate public involvement, but emphasized that saving time and money alone does not justify inadequate opportunities for public participation. The Court observed that public participation is premised on the belief that those affected by a decision have the right to be involved in the decision-making process. The Court commented that information is an absolute prerequisite for effective public participation and that the public must be informed and consulted as a Bill progresses through different stages. The Court rejected as "misconceived" the argument that it would be impractical for new public comment processes to be initiated every time an amendment is made, noting the irony that the respondents had facilitated participation for superficial amendments but ignored the public when amendments became material. The Court stated that if Parliament wishes to proceed with the impugned provisions, "there is no reason why public participation would need to be a lengthy exercise," suggesting that proper participation could be conducted efficiently.
This case is a significant reaffirmation of the constitutional requirement for meaningful public participation in the legislative process, particularly when material amendments are introduced to Bills. It establishes that Parliament cannot ignore affected stakeholders merely because earlier versions of legislation underwent public participation. The judgment reinforces the principle from Doctors for Life that public participation is not a mere formality but a substantive constitutional obligation. It clarifies that amendments which fundamentally alter the regulatory scope of legislation, impose significant new compliance burdens, or affect persons not previously regulated, constitute material amendments requiring fresh public participation. The case is particularly important for environmental and administrative law, demonstrating that courts will scrutinize parliamentary processes and strike down legislation where procedural constitutional requirements are not met. It emphasizes that South Africa's democracy is both representative and participatory, and that the right to be heard before decisions affecting the public are made is fundamental. The judgment also demonstrates judicial willingness to declare provisions invalid immediately without suspension where the amendments have not yet come into force and no regulatory vacuum would result.