Recently, the Constitutional Court, in a unanimous decision, handed down judgment regarding the constitutionality of a decision made by the President on the 2nd of June 2014, to publish into law, the National Environmental Management Laws Amendment Act (“NEMLAA”).  The application was instituted in the Gauteng High Court by Aquarius Platinum SA (Pty) Ltd (“Aquarius”), a mining company operating in Kroondal in the North West Province.

NEMLAA was to come into force 3 months after its publication (2 September 2014), and required, among other things, for mining companies to manage their residue stockpiles and residue deposits in a manner that is prescribed by the regulations to be published by the Minister in the Gazette, and to obtain waste management licenses for their residue stockpiles and residue deposits.  Before the regulations for implementing NEMLAA were in place, the President published NEMLAA and three months later NEMLAA came into force, however the Minister had failed to publish the regulations in time.  This triggered Aquarius to launch an application before the Gauteng High Court to have the decision by the President to publish NEMLAA to be declared irrational and to be set aside on the basis that it created an uncertainty regarding the implementation of the Act as certain provisions of the Act could not come into operation until the regulations were put in place by the Minister.

The High Court agreed with the submissions made by Aquarius and declared the President's decision to publish NEMLAA to be irrational and set it aside subject to confirmation by the Constitutional Court in terms of Section 172(2)(a) of the Constitution. The Minister of Environmental Affairs opposed this declaration of Invalidity.

The cardinal issue canvassed before the Constitutional Court was whether the decision by the President to publish NEMLAA was irrational because the publication was done without the regulations necessary for implementing the Act being in place.  Addressing this issue required the proper determination of Section 32 of NEMLAA read with Section 81 of the Constitution.

Section 32 of NEMLAA provided the following:

• “This Act is called the National Environmental Management Laws Amendment Act, 2014, and comes into effect 3 months after the date of publication of this Act by the President in the Gazette in terms of Section 81 of the Constitution.”

Section 81 of the Constitution provides that:

• “A bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”

The Court noted, with emphasis, that Section 32 of NEMLAA already provided a date when the Act will come into effect, which was 3 months from the date of publication.  A proper analysis of section 81 of the Constitution revealed 3 important principles regarding the promulgation of an act of parliament:

1.    A bill that has been assented to and has been signed by the President becomes an act of Parliament;
2.    It requires that the new Act be published without delay; and
3.    As a general rule, the Act comes into force upon publication unless stated otherwise in the Act.

The Court explained that where an Act has a provision that says it will come into effect on a certain date when it is published, the Act in that case would not come into operation immediately upon publication nor will the determination of that date be left to the President to specify.  While Section 81 makes it clear that the publication of an Act that has been assented to and signed by the President is a peremptory requirement, it did not however follow, just as a matter of sequence, that the person who publishes such an act, (the President in this case) must satisfy themselves as to whether or not it will be conducive for such an Act to be implemented before publishing it.

However, where the Act empowers the President to determine the date of coming into effect, then the President must ensure that the Act is ready to commence operating before choosing the date it will come into force.  Where the President deliberately puts an Act into force on a date that is practically impossible to implement, he would have exercised his power not 'to achieve the purpose for which it was conferred'. In essence there would be no 'rational connection between the exercise of [his] power and the purpose', and consequently he would fail the rationality standard.  

On the question as to whether the President was duty bound to ensure that the relevant regulations were published or in place before the Act came into effect, the Court, applying the above principles, noted that in Section 32 of NEMLAA Parliament had itself determined the date in which NEMLAA would come into force.  Parliament had specifically delayed the immediate effect of NEMLAA upon publication by a period of 3 months so as to afford the Minister of Environmental Affairs the time to make such regulations as were necessary for the Act to be fully implemented.  The Court held that under such circumstances, the President was in no position to believe that the Minister would fail to make the regulations within the 3 months in order for NEMLAA to be fully implemented; therefore it was not irrational for the President to publish the Act in absence of the relevant regulations.

The Court held further that it would have only been irrational for the President to publish the Act in absence of the regulations if it was required of him by legislation to ensure that the regulations existed before the Act was published.  However, Section 32, in this instance, did not impose such a duty on him.  The Court also noted in the course of the Court proceedings that the Minister eventually published the regulations on 24 July 2015, albeit more than a year after NEMLAA was published.  This rendered moot the request that was submitted by Aquarius, however the Court still had to deal with the issue of invalidity in order to give effect to NEMLAA (which up to this point was suspended).

In summarising the entire matter, the Court held that the High Court erred in its findings that the decision by the President to publish NEMLAA in absence of the regulations was irrational and therefore did not confirm the High Court’s order of invalidity.  The Court lambasted the Minister for her failure to publish the regulations in time and said this amounted to a serious dereliction of her duty, and it had serious implications to upholding the Constitution and the rule of law.  The Court stated:

"The fault for putting the Environmental Amendment Act into force without the necessary regulations lies squarely on the Minister’s shoulders. She and she alone is to blame and not the President."

Practical Implications of the Judgment

NEMLAA brings into effect the amendments to the National Environmental Management Waste Act 59 of 2008 (NEM: WA) particularly with respect to the management of residue stockpiles and residue deposits under the Waste Act.  The coming into effect of NEMLAA will also ensure the effective implementation of the One-Environmental System to streamline environmental authorisation.  Companies, particularly in the mining industry dealing with residue stockpiles and residue deposits, must ensure that they are abreast of the changes brought into effect by NEMLAA and comply with its requirements and the relevant regulations or they may face penalties which include a fines of up to R10 000 000 or imprisonment of up to 15 years.