Table of Contents

List of Abbreviations.
Table of Statutes
Abstract..
Introduction..
Aim.
Scope and Objectives
Research Question
Literature Review
Research Methodology
Legislative Framework.
Constitution of South Africa and other legislations.
National Environmental Management Act, 1998
Environment Conservation Act, 1989
Hazardous Substances Act, 1977
National Waste Management Strategy of South Africa...
Regional Gap Analyses
Recommendations
Conclusion

List of Abbreviations
AU-

African Union

NWMS-

National Waste Management Strategy

EPWP-

Expanded Public Works Programme

IP&WM-

Integrated Pollution and Waste Management

NEMA-

National Environmental Management Act

ECA-

The Environment Conservation Act

MEAs-

Multilateral Environmental Agreements

POPs-

Persistent Organic Pollutants

EPR-

Extended Producer Responsibility

SECO-

Swiss State Secretariat for Economic Affairs

SA-

South Africa

List of Statutes
1. The South African Constitution (Act 108 of 1996)
2. Hazardous Substances Act (Act 5 of 1973)
3. Environment Conservation Act (Act 73 of 1989)
4. National Water Act (Act 36 of 1998)
5. The National Environmental Management Act (Act 107 of 1998)
6. Municipal Structures Act (Act 117 of 1998)
7. Municipal Systems Act (Act 32 of 2000)
8. Mineral and Petroleum Resources Development Act (Act 28 of 2002)
9. Air Quality Act (Act 39 of 2004)
10. National Environmental Management: Waste Act, 2008 (Act 59 of 2008)
Abstract

This project deals with the regional regulatory framework for waste management in South Africa
and highlights the key legislations governing the management of the waste materials and details
out the lacunas in the framework and provides with the recommendations for the same. The
National Waste Management Strategy of South Africa has been discussed elaborately.
Introduction
Sound management of chemicals and wastes is crucial for the protection of human health and the
environment, yet many African countries lack the capacity for sound management of chemicals
and waste throughout their life cycles. Solid wastes, such as electronic and plastic waste,
continue to pose particular challenges that must be well addressed. Coordination and cooperation
during conferences dealing with toxic chemical and other wastes have been highlighted in the
Basel Convention, the Rotterdam Convention and the Stockholm Convention. AU leadership for
the development and enforcement of comprehensive International, regional, national and local
waste management policies, strategies, laws and regulations is needed now more than ever as a
result of increased reports of illegal dumping, and their link to climate change. 1 However this
project deals with regional framework for waste management in South Africa. Poor waste
management practices in particular the widespread dumping of wastes in water bodies and
uncontrolled dump sites, aggravates the problems of generally low sanitation levels across the
African continent. Urbanisation is on the rise in Africa and this trend is expected to continue in
the future. Of concern is that the infrastructure and land use planning including for waste
management is not coping with the growth of urban areas (around 3.5% annually, highest in the
world). This is particularly urgent in the slum areas which constitute a big part of any of the
cities and towns in Africa.2 When we work for the environment, it continues to work for us. The
National Waste Management Act and National Waste Management Strategy of South Africa have

1 African Strategy on Climate Change, May 2014- available at

http://www.un.org/en/africa/osaa/pdf/au/cap_draft_auclimatestrategy_2015.pdf
2 Africa review report on waste management, 2009- available at
http://www.uncsd2012.org/content/documents/AfricanReviewReportonWasteManagementMainReport.pdf

established an economic basis for viable recycling by placing sufficient economic value on
waste. Waste is indeed wealth.3
Waste management is a concurrent function amongst all spheres of government and the
department of environmental affairs as the custodian for environmental management is mandated
to ensuring a safe and healthy environment that is not harmful to the wellbeing of the citizens of
South Africa. In recognition of this Constitutional obligation, the department has promulgated
the national environmental management: Waste Act 59 0f 2008 (Waste Act) and in 2010
developed the National Waste Management Strategy (NWMS). The Waste Act proactively assists
government to adhere to the Constitutional assignment of legislative & executive powers
between the three spheres of government and the NWMS assists to achieve the goals and
objectives of the waste act.4
Working on Waste is one of the initiatives of the Department of Environmental Affairs of South
African government implemented under the auspices of the Expanded Public Works Programme
(EPWP). The initiative is a proactive preventative measure that recognises that inadequate waste
services may lead to litter which is not only visual pollution but may lead to health hazards and
environmental degradation. Ineffective waste management practices can affect the well-being of
the affected communities and this can be further exacerbated by the increased use of illegal
dumping and littering. The programme seeks to ensure that both social and ecological sustainability is achieved through implementation of sustainable waste management practices.5

Aim
Aim of this project is to study the regional framework implemented in the African Union for
waste management.
3 Department of Environmental Affairs Annual report 2014-2015- available at
https://www.environment.gov.za/sites/default/files/reports/environmentalaffairs_annualreport2014_5.pdf
4 Department of Environmental Affairs, Working on Waste- available at
https://www.environment.gov.za/projectsprogrammes/workingonwaste
5 Ibid

Scope and Objective

Scope of this study is limited to the waste management policies and programmes under the
Department of Environmental Affairs of South Africa.
Objective of this projects are:

To find out the legislative framework for waste management in south Africa
Process and methodology used by the government to cope up with waste materials
Gaps in regional framework as compared to the international framework for the waste

management
To provide with suggestions for improvement

Research Question
What is the regional framework implemented by the government for the management of the
waste material in South Africa and lacunas and gaps in it.

Literature Review
National Waste Management Strategy, Department of Environmental Affairs, Republic of
South Africa:The document highlights all the aspects of waste management prevalent in south Africa along
with the policies and planning and elaborately discuss the legislative framework which governs
the Waste management. The language of the document is simple and descriptive and issues have
been discussed in detail.
Annual Report published by Department of Environmental Affairs 2014-15:
The reports deals with statistics of the implementations of the project and programs by the
Government for the year 2014-15. And also highlights the future goals of the country towards the
Chemicals and their waste management.

Research Methodology
Research Method Doctrinal Method
Source of Data Collection Primary and Secondary Source of Data
Research Design Descriptive Research Design
The research methodology adopted for this research is doctrinal in nature. There shall be
extensive review of books, articles, journals, literature and statutory law of South Africa on the
point at hand.
Legislative Framework
The Constitution of the Republic of South Africa under Chapter 2 of the Bill of Rights stipulates
that everyone has the constitutional right to have an environment that is not harmful to his or her
health and to have the environment protected for the benefit of present and future generations
through reasonable legislative and other measures that prevent pollution and ecological
degradation, promote conservation and secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social development. 6 Waste
management in South Africa is based on the principles of the White Paper on Integrated
Pollution and Waste Management (IP&WM) and the National Waste Management Strategy
(NWMS) published by the Department of Environmental Affairs and Tourism in 1999 and 2000
respectively and the subsequent enhancement of the new National Environmental Management:
Waste Act, 2008 (Act No. 59 of 2008). South Africa now supports the waste hierarchy in its
approach to waste management, by promoting cleaner production, waste minimisation, reuse,
recycling and waste treatment with disposal seen as a last resort in the management of waste.7

6 Ibid
7 Waste Management in South Africa, Swiss Business Hub South Africa, Pretoria December, 2011available at http://www.s-ge.com/sites/default/files/private_files/Waste%20Management%20South
%20Africa_SBHSA_December-2011.pdf

Waste in SA is divided into two classes based on the risk it poses - general waste and hazardous
waste. "General waste" means waste that does not pose an immediate hazard or threat to health
or to the environment, and includes8:
(a) Domestic waste;
(b) Building and demolition waste;
(c) Business waste; and
(d) Inert waste;
"Hazardous waste" means any waste that contains organic or inorganic elements or compounds
that may, owing to the inherent physical, chemical or toxicological characteristics of that waste,
have a detrimental impact on health and the environment.
Waste in South Africa is currently governed by means of a number of pieces of legislation,
including but not limited to:

The South African Constitution (Act 108 of 1996)

Hazardous Substances Act (Act 5 of 1973)
Health Act (Act 63 of 1977)
Environment Conservation Act (Act 73 of 1989)
Occupational Health and Safety Act (Act 85 of 1993)
National Water Act (Act 36 of 1998)
The National Environmental Management Act (Act 107 of 1998)
Municipal Structures Act (Act 117 of 1998)
Municipal Systems Act (Act 32 of 2000)
Mineral and Petroleum Resources Development Act (Act 28 of 2002)
Air Quality Act (Act 39 of 2004)
National Environmental Management: Waste Act, 2008 (Act 59 of 2008)

Constitution of South Africa and other legislations9

8 Ibid
9 National Waste Management Strategy- available at
https://www.environment.gov.za/sites/default/files/docs/nationalwaste_management_strategy.pdf

The Constitution of South Africa, 1996 (the Constitution) provides the foundation for
environmental regulation and policy in South Africa. The right to environmental protection and
to live in an environment that is not harmful to health or well-being is set out in the Bill of Rights
(section 24 of Chapter 2). This fundamental right underpins environmental policy and law, in
particular the framework environmental legislation established by the National Environmental
Management Act, 1998 (Act No. 107 of 1998) (NEMA). The Waste Act fundamentally reforms
the law regulating waste management, and for the first time provides a coherent and integrated
legislative framework addressing all the steps in the waste management hierarchy. The waste
management hierarchy provides a systematic and hierarchical approach to integrated waste
management, addressing in turn waste avoidance, reduction, re-use, recycling, recovery,
treatment, and safe disposal as a last resort. NEMA introduced a number of additional guiding
principles into South African environmental legislation, including the life-cycle approach to
waste management, producer responsibility, the precautionary principle and the polluter pays
principle. Chapter 5 of NEMA provides instruments for integrated waste management. NEMA
also places a duty of care on any persons who may cause significant pollution or degradation of
the environment, requiring them to institute measures to either prevent pollution from occurring,
or to minimise and rectify the pollution or degradation where it cannot reasonably be avoided.
The Waste Act echoes the duty of care provision by obliging holders of waste to take reasonable
measures to implement the waste management hierarchy. The Constitution assigns concurrent
legislative competence to national and provincial government with respect to the environment
and pollution control (section 146 of the Constitution). It assigns exclusive provincial legislative
competence to the local government matters of cleansing and refuse removal, refuse dumps and
solid waste disposal. The Constitution allows national legislation to set national norms and
standards relating to these matters in cases where national uniformity is required to deal
effectively with the issue. Norms and standards are therefore the foundation of the regulatory
system established by the Waste Act. The Waste Act obliges national government to develop
norms and standards on key regulatory matters, while it may develop additional norms and
standards on certain ancillary matters. Provinces and municipalities may also develop standards
provided they do not conflict with national standards.
The Waste Act needs to be read in conjunction with the body of legislation that regulates local
government, including the Municipal Finance Management Act, 2003, and the Municipal

Systems Act, 2000, which create the overall framework for planning, budgeting, service delivery
and reporting at local government level. The Waste Act establishes cooperative governance
mechanisms for dealing with matters such as waste planning, designation of waste management
officers and performance reporting. National and provincial government departments are also
constitutionally obliged to support municipalities in the execution of their functions. The Waste
Act also needs to be read in conjunction with other sectoral legislation. For example, the
Minerals and Petroleum Resources Development Act, 2002 section 39(3)(iii) states that
Environmental Management Plans must comply with any prescribed waste standard or
management standards or practices. The Waste Act does not apply to areas that are regulated by
their sectoral legislation, including: radioactive waste residue deposits and residue stockpiles the
disposal of explosives and the disposal of animal carcasses.

National Environmental Management Act, 199810

The National Environmental Management Act (NEMA) of South Africa was promulgated to
give legislative effect to the provisions of the White Paper on a National Environmental
Management Policy for South Africa.

The Act provides for co-operative environmental

governance by establishing principles for decision-making on matters affecting the environment,

institutions that will promote co-operative governance and procedures for co-ordinating
environmental functions exercised by organs of state. The Act therefore also gives effect to the
obligations relating to co-operative government contained in section 42 of the Constitution.
Because of the broad scope of the Act, it is arguable that most of its provisions are applicable to
health care waste management. However, this review refers only to the more significant
provisions.
Principles
Section 2 of the Act contains a set of principles. There are two overarching principles, namely
that:
10 The Regulation of Health Care Waste in South Africa An assessment of the need and options for law reform, 13
April 2006- available at www.sawic.environment.gov.za/documents/485.doc

 Environmental management must prioritize people and serve their interests equitably (i.e. an
anthropocentric approach); and
Development must be socially, environmentally and economically sustainable (i.e. sustainable
development).
Subsection 4 sets out a number of factors that must be taken into account when assessing
sustainable development as well as a list of what may be regarded as sub-principles.
Section 2 provides that the principles apply to all the actions of all organs of state that may have
a significant impact on the environment. Such actions will include the drafting of legislation,
formulation of policy and strategy, granting of authorizations and other decision-making. In other
words, the application of the principles should occur in all aspects of health care waste
management by government. The principles must therefore be considered in the approach which
is developed to health care waste management legislation.
Compliance and enforcement
NEMA has recently been amended to provide for expansive compliance and enforcement
powers. These powers are applicable to any Act which is identified in NEMA. Any future health
care waste legislation could be linked to this chapter in NEMA.

Environment Conservation Act, 198911

The Environment Conservation Act (ECA) is presently recognised as the most important Act
governing waste - particularly solid waste - since, unlike most other legislation regulating waste,
it makes provision for the regulation of waste specifically and with the aim of providing for the
protection of the environment. Although much of the Act has been repealed by NEMA, the
sections pertaining to waste, environmental impact assessments and regulatory powers are still in
effect.

11 Ibid

Section 1 of ECA provides for the formulation of a definition of waste by regulation and section
20 of the Act lays down the process for disposal of waste. In addition to the provisions of section
20, the Act allocates powers to both the Minister of Water Affairs and Forestry and the Minister
of Environmental Affairs and Tourism to pass regulations which expand the reach of the waste
management provisions.

Hazardous Substances Act, 1977 12

The Hazardous Substances Act, which is administered by the Minister of Health, provides for the
control of substances that may cause injury, ill-health or death to human beings by reason of the
substance being toxic, corrosive, irritant, strongly sensitising, flammable or because these effects
can occur through the generation of pressure. Although a primary purpose of the Act is not to
regulate waste management, it contains specific powers regarding the regulation of the
disposal of hazardous substances.

National Waste Management Strategy of South Africa

International Obligations13:
The modern system of global environmental governance is to a large degree a consequence of the
Rio Earth Summit 1992 and Agenda 21, which set in motion a series of Multilateral
Environmental Agreements (MEAs). In relation to hazardous substances and waste, four
principal conventions apply:
1. The Rotterdam Convention, acceded to by South Africa in 2002, promotes and enforces
transparency in the importation of hazardous chemicals.

12 Ibid
13Supra, note 9

2. The Basel Convention, acceded to by South Africa in 1994, addresses the need to control the
transboundary movement of hazardous wastes and their disposal, setting out the categorization of
hazardous waste and the policies between member countries.
3. The Stockholm Convention on Persistent Organic Pollutants (POPs), to which South Africa
became a signatory in 2001 and ratified in 2002, requires that member countries phase out POPs
and prevent their import or export.
4. The Montreal Protocol, to which South Africa became a signatory in 1990 and ratified
subsequent amendments, phases out the production of certain substances and so protects the
ozone layer.

The Eight Strategic Goals around which the NWMS is structured are14:
Goal 1: Promote waste minimisation, re-use, recycling and recovery of waste.
Goal 2: Ensure the effective and efficient delivery of waste services.
Goal 3: Grow the contribution of the waste sector to the green economy.
Goal 4: Ensure that people are aware of the impact of waste on their health, well being and the
environment.
Goal 5: Achieve integrated waste management planning.
Goal 6: Ensure sound budgeting and financial management for waste services.
Goal 7: Provide measures to remediate contaminated land.
Goal 8: Establish effective compliance with and enforcement of the Waste Act.

Instruments for implementing the NWMS15:

14 Ibid

This section describes the regulatory and economic instruments that will give effect to the
strategy set out in the national plan. The Act provides a toolbox of waste management measures
to deal with the challenges of particular waste streams. Regulations issued in terms of the Act
will give effect to these measures.
The measures described in this section are:

Waste Classification and Management System provides a methodology for the

classification of waste and provides standards for the assessment and disposal of waste

for landfill disposal

Norms and standards baseline regulatory standards for managing waste at each stage of

the waste management hierarchy.

Licensing the Act provides for a list of waste activities that require licensing and the
setting of licensing conditions. The Act also provides for listing waste management
activities that do not require a licence if undertaken according to specified norms and

standards or requirements.
Industry waste management plans enables collective planning by industry to manage
their products once they become waste and to collectively set targets for waste reduction,

recycling and re-use.

Extended Producer Responsibility (EPR) identifies particular products that have toxic
constituents or that pose waste management challenges, and regulates industry

responsibility for these products beyond point of sale.

Priority wastes identifies categories of waste that require special waste management

measures due to the risks of these wastes to human health and the environment.
Economic instruments encourages or discourages particular behaviour and augments

other regulatory instruments.

E-Wasa
The E-Waste Association of South Africa was established in 2008 to manage the establishment of
a sustainable environmentally sound e-waste management system for the country. E-Wasa was
supported by the "Global Knowledge Partnerships in e-Waste Recycling" program, initiated by
15 Ibid

the Swiss State Secretariat for Economic Affairs (SECO) and implemented by the Federal
Laboratories for Materials Testing and Research, several projects were initiated successfully in
three South African provinces ( namely KwaZulu-Natal, Western Cape and Gauteng) as early as
in 2004. And this is an ongoing concern. Recycling waste is a growing industry in SA whereby
the most common materials recycled are paper, glass, plastic and metal. Numerous companies
have been established to recycle these waste products. However, the whole industry is in its
infanthood when compared to Europe an Switzerland and Germany in particular.16

Regional Gap Analyses

Policy and Planning
There is no national policy for reduction of generated waste at source. Although councils have
by-laws, the thrust of these laws has remained focused on collection and disposal of waste, with
little official attention being paid to other waste management activities such as recycling and
composting. Nonetheless, operationalisation of these laws still remains a big challenge. In some
cases Waste Management Strategies developed have not been embraced by all stakeholders in the
country.
Legal aspects including enforcement

Weak enforcement of bylaws in local municipalities

Most of the existing legislation does not adequately address current key issues and
problems of waste risk control and management.

Recommendations

Policy and Planning

It is important that policies and comprehensive waste and hazardous waste management
strategies, (integrated waste management) including basic elements like waste collection, waste
16 Supra, note 7

treatment, waste recycling, disposal sites, etc. should be in place. These would address recycling
of items such as papers, plastics, batteries, lubricating oils and electronic wastes.
Integrated waste management plans have to support pro-poor involvement in waste management
as a source of employment and hence income generation.

Legal aspects including enforcement

There is a need of strict enforcement of the law and progressively provide for continuous
reviews and updates of legislation so as to tailor it to suit, as well as enable it to attain the vital
coping mechanisms to deal with new developments and future challenges such as electronic
wastes and adopt the principle of extended producer responsibility as it is increasingly practiced
in several industrialized countries.

Conclusion
The approach to viewing material as a renewable resource rather than waste may provide an
alternative solution to promoting waste re-use. Regulation of resource use, extended to
renewable resources, will favour re-use and recycling initiatives as well as give due regard to
virgin resource conservation. It may even lead to the replacement of the waste hierarchy with a
resource-based hierarchy. Such a resource hierarchy would typically focus on minimization of
the use of virgin resources, followed by waste minimization, and renewable resource re-use,
recycling and energy recovery. This should be considered in conjunction with the protection of
environmental and human health, to ensure least impact through waste recycling and re-use.
Protection of the environment against the effects of waste is a high priority, especially in
developing countries, where the poor enforcement of waste legislation has resulted in impacts on
both the environment and human health.
There is thus a definite need in South Africa to reconsider the retention of a broad definition of
waste in the statutes. A shift in focus away from waste towards renewable resource use and
recovery will not only assist in implementing the waste management hierarchy, but it will also
bring South Africa one step closer to the ultimate goal of reducing waste to landfill. It will

further enable industry to engage more actively in industrial ecology initiatives that are more
focused on sustainable development through waste and energy exchange and cooperation, than
waste management as such.

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THE REGULATION OF HEALTH CARE WASTE IN SOUTH AFRICA AN ASSESSMENT

OF THE NEED AND OPTIONS FOR LAW REFORM, 13 April 2006- available at
www.sawic.environment.gov.za/documents/485.doc
Websites
https://www.environment.gov.za
http://www.s-ge.com/
http://ewasa.org/
http://www.uncsd2012.org/