The Constitutional Court has found in South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others [2023] ZACC 18, that further public involvement was required when the legislature made material amendments to the National Environmental Management Laws Amendment Bill.
Sections 59(1)(a) and 72(1)(a) of theConstitution place a duty on Parliament to facilitate public involvement when enacting laws. To meet its constitutional mandate,Parliament must ensure that as new laws progress through different stages, the public must be informed, consulted, and given a real opportunity, as concerned citizens, to express their views. This is underscored by the following objectives, both pragmatic and symbolic:
- Legislators must be informed by all inputs that will allow them to produce the best laws.
- All parties interested in legislation and affected by it, should feel that they have been given an opportunity to have their say.
To achieve these objectives, public participation standards must be consistent with constitutional prescripts and legal requirements which include informing, educating, and creating meaningful opportunities for the public to participate indecision-making on issues that affect them.
But what happens when the public is consulted during the early stages of the legislative process, but not consulted after material amendments have been introduced to the draft Bill? Put differently, will the legislature be deemed to have fully discharged its duty to involve the public under these circumstances? This question was recently answered in a unanimous judgment delivered by the Constitutional Court in SouthAfrican Iron and Steel Institute and Others vSpeaker of the National Assembly and Others[2023] ZACC 18. 1. 2.
The South African Iron and Steel Institute(“SAISI”) and Fertilizer Association of SouthernAfrica (“FERTASA”) (the “applicants”) mounted a constitutional challenge against the Speaker of the National Assembly and Others (the“respondents”), directed at certain provisions of the National Environmental Management LawsAmendment Act 2 of 2022 (the “NEMLA Act”and the “impugned provisions”), which amended the definition of “waste” in theNational Environmental Management: WasteAct 59 of 2008 (the “Waste Act”). The applicant’s case was that the respondents had not fully discharged their duty to consult with the public; the legislature had not met the standard required of them in this regard, as contemplated in the Constitution.
The constitutional challenge was the culmination of a sequence of events spanning back to 2015, when the NEMLA Bill, which proposed a new definition of the word “waste”in the Waste Act, was approved by Cabinet. The public was subsequently invited to comment on the Bill, which was introduced in the National Assembly in May 2017. At that stage, the version of the Bill contained immaterial changes to the definition of “waste”.Between April 2018 and October 2020, further public participation hearings were held, and the public provided input on various evolving versions of the Bill. The following points are noteworthy at this stage:
- In the various versions of the Bill circulatedduring this period, the definition of “waste”remained materially unaltered.
- The public was not invited to participate inthe legislative process at all, after October2020.
In June 2021, the National Council ofProvinces ( “NCOP”) convened a meeting in terms of which the Department ofEnvironmental Affairs (the “Department”)offered an entirely new definition, the effect of which was to radically expand its scope.
The applicants became aware of the new definition in July 2021 and promptly wrote to the Department and the NCOP requesting further public participation, owing to the fact that the amended definition was a significant departure from the previous definition contained in the Waste Act, which would have significant implications for the applicants’ industries. This request fell on deaf ears and the NEMLA Bill containing the new definition was nevertheless passed by theNCOP and the National Assembly. In June2022 the Bill received the President’s assent.When the applicants complained to theConstitutional Court, the NEMLA Act had not yet come into operation.
The essence of the applicant’s complaints was that although they were afforded an opportunity to participate in the early stages of the legislative process, the respondents were obliged to provide them with a further opportunity to make representations once substantive amendments were introduced. The respondent’s failure to do so was in contravention of their constitutional duty.
The applicants contended that the materiality of the amendments was borne out by the fact that products previously not regarded as“waste”, now fell within the scope of the expanded definition. As such, a new class of persons would now be required to comply with the detailed regulatory requirements of the Waste Act, in relation to waste management.
In terms of the new definition, a vast range of products, co-products and by-products that were never regulated as waste before, would now be subject to the onerous requirements of the Waste Act, because a new class of persons was now deemed to perform a waste management activity in terms of Section 20 of the Waste Act, which required them to apply for a waste management licence. Breach of Section 20 could result in severe penalties and obtaining a licence would cost approximately R 500 000.00. Furthermore, the procedure for obtaining a licence is, so contended the applicants, an “onerous, burdensome, lengthy and expensive procedure.”
The respondents conceded that no further public participation was conducted in regard to the new definition but denied that they had failed to comply with the duty to involve the public in the law-making process. In support of this argument, they contended that:
- the applicants were given an adequate opportunity to provide comments in relation to the new definition, by virtue of the extensive engagements which had taken place prior to its emergence in June 2021;
- the views of the members of the public were considered;
- the amendments were not material; and
- it would be impractical, unrealistic, and dilatory for new public comment processes to be initiated every time an amendment is made to a draft Bill.
The Court disagreed with the respondents’ assertion that they were not required to consult further once the amendment had been introduced. In coming to this conclusion, the Court assessed (1) whether the final version of the Bill introduced a material amendment; and (2) whether the standard for adequate participation was met (i.e., whether the public participation was reasonable under the circumstances).
The Court held that on a plain reading of the old and new definitions, “they are remarkably different, with the revised definition being far more expansive.” The Court went on to dismiss the respondents’ idle contention that the late change to the definition was not material and held that “the changes were not merely ‘semantic or technical’, but rather material,” noting that the amendment had vast and far-reaching implications for the industry.
The Court held that because the proposals to amend the definition in June 2021 were material, the need for further public participation was triggered. The failure of the respondents to call for further submissions from stakeholders constituted a breach of the duty to consult fully and meaningfully with the public, who had not, in the circumstances, been afforded a reasonable opportunity to raise their concerns regarding the new definition. The contention of the respondents that cost and time-saving considerations justified a failure to further engage the public on the new definition, did not find favour with the Court.
In the result, the challenge succeeded; the Court declared the impugned provisions unconstitutional and invalid owing to the procedural defects in their enactment, and they were accordingly set aside. The Court noted that if Parliament wishes to proceed with the impugned provisions in their current form, they could do so with adequate participation of the public.
The judgment confirms that when material amendments are made to draft bills, it is incumbent on the legislature to further involve the public in the legislative process, notwithstanding the extent of public involvement that preceded the amendment. A failure to facilitate further public engagement constitutes a failure on behalf of Parliament to meet the standard of public participation required by the Constitution. This principle would also hold true in regulatory processes which are required to be preceded by public consultation. And cost and time considerations can never be sufficient justification for not complying with the aforesaid constitutional injunction.