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A recurring feature of South Africa's national environmental management legislation is the delegation of lawmaking powers to the Minister (including the possibility for further delegation to Provincial Ministers). Such delegated lawmaking powers enables the Minister to give effect to and to flesh out the original legislation and are a common and expected feature of primary legislation (also known as enabling or original legislation).
The legal competence of Ministers to promulgate ministerial laws (termed secondary legislation and usually found in regulations and proclamations) is determined by reference to the original legislation (see Fedsure Life Assurance Ltd v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC)).
The defining feature of proclamations and regulations are that they are certain and (due to that certainty) that they are binding. Their contravention or violation constitutes statutory offences for which perpetrators may be convicted and (upon conviction) fined and even imprisoned.
Provisions enabling Ministers or Provincial Ministers to set "norms" and "standards" that contribute to the achievement of aims of legislation are neither new nor novel. Within the suite of environmental legislation in South Africa examples of such norms and standards include, for instance, the setting of tariffs for water services in terms of section 10(1) of the Water Services Act, 108 of 1997 as promulgated in July 2001; National norms and standards for the management of elephants in South Africa which were also promulgated in terms of section 9 of the National Environmental Management: Biodiversity Act, 10 of 2004 in February 2008.
The National Environmental Management Act, 107 of 1998
Section 24(10) of the National Environmental Management Act, 107 of 1998 ("NEMA") (effective as from 1 May 2009) allows for the development by the Minister (or Provincial Ministers (MECs) with the consent of the Minister) to develop norms and standards for activities or any parts or combinations of such activities that may commence without environmental authorisation in terms of the Act. The Minister may also prescribe the use of developed or adopted norms and standards in order to meet the objectives of the Act, prescribe reporting and monitoring requirements and prescribe procedures and criteria to be used by the competent authority for the monitoring of such activities in order to determine compliance with the prescribed norms and standards.
Should the Minister or MECs decide to adopt such norms and standards, he or she must provide rules, guidelines or characteristics that may commonly and repeatedly be used and against which the performance of activities or the results of those activities may be measured for the purposes of achieving the objects of NEMA. All this requires proper notification and participation from interested and affected parties.
The question arises as to what the effect of non-adherence to prescribed norms and standards might be. Neither the Water Services Act, nor the Biodiversity Act determine whether non-adherence to prescribed norms and standards constitutes offences and what the legal sanction for such non-adherence might be.
Unlike in the case of national and provincial guidelines which may be published to assist with the implementation of the environmental impact assessment (EIA) regulations but which are clearly stated to not be binding (although to be taken into account when preparing, submitting, processing or considering applications for environmental authorisation in terms of section 24 of NEMA), the enabling provisions of the aforementioned legislation does not explicitly state what the legal status of norms and standards are. one may perhaps assume from the above that the legislature is somewhat cautious in defining this status due to the inherent subjectivity of environmental norms and standards.
The National Environmental Management: Waste Act, 59 of 2008
The National Environmental Management: Waste Act, 59 of 2008 (the "Waste Act"), however, presents a radical departure from the established manner in which norms and standards are implemented in South African environmental legislation.
In terms of section 7 of the Waste Act the Minister must, by notice in the Gazette, set national norms and standards for the classification of waste; planning for and provision of waste management services; and storage, treatment and disposal of waste, including the planning and operation of waste treatment and waste disposal facilities. The Minister may set national norms and standards for the minimisation, re-use, recycling and recovery of waste, including the separation of waste at the point of generation; extended producer responsibility; the regionalisation of waste management services; and the remediation of contaminated land and soil quality.
While the provisions of the Waste Act in this regard are not in themselves controversial, in terms of section 67 and 68 of the Act, the contravention by any person of a norm or standard in terms of the Act constitutes an offence punishable by a fine of R5 million or to imprisonment not exceeding 5 years, or to both such fine and imprisonment (in addition to any other penalty or award that may be imposed or made in terms of NEMA). It is clear therefore that such norms and standards will entail the exercise by the Minister and Provincial Ministers of lawmaking powers (which will be implemented by municipalities) that might result in severe liability for persons who may contravene such norms and standards.
Science and technological innovation have a significant impact on norms and standards, as have societal perceptions, values and priorities. In this regard it is insightful to bear in mind the standard of "best practicable environmental option" entailing the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term.
Practices, methodologies, ways and manners of doing things, however, evolve over protracted periods of time to the point where a particular norm or standard may be said to have developed. Importantly, such norms and standards then necessarily develop even further. The scientific and/or philosophical correctness or appropriateness of any particular norm or standard is also often subject to vigorous scientific debate even without reference to a particular physical setting.
All of the above indicates a propensity for norms and standards to be subjective in a number of ways. The potential difficulty with this is that the appropriateness of norms and standards are by their very nature often determined in the context of a particular place, time and individual view.
It needs to be borne in mind that for norms and standards to have any meaning towards their effective practical application, a certain amount of malleability may need to be allowable for pragmatic adaptation in any given situation. The executive may therefore be tempted to devise vague or over-broad norms and standards. This however will create a constitutional challenge to the criminalisation of the violation of such norms and standards because of that very vagueness, effectively nullifying the incentive to avoid prosecution.
Paradoxically, for norms and standards to be enforceable the requirement for their legal certainty - thereby implying a particular specificity - may well subvert their successful application. Where highly specific norms and standards are created by the executive through enabling legislation, little room for interpretation, adaptation or situation-specific contextualisation remains (if at all). It is ironic that while this may preserve the possibility to prosecute violations of norms and standards, it could also cause proliferation of such violations because of that very rigidity and specificity.
As alluded to above, whether national and provincial norms and standards under the Waste Act will be able to pass constitutional muster will only be determinable upon their publication. It appears however that a certain mutual exclusivity may arise between the flexibility and enforceability of norms and standards in the Waste Act.
Janse Rabie and Kenneth Cameron
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