IN THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA

NORTH GAUTENG, PRETORIA

CASE NUMBER 71039/2012

----------------------~~~~~ In the matter between , 'LETE WHICHEVER IS NOT APPLICABLE

· , ) REPORTAIDLE: Y$NO.

RETAIL MOTOR INDUS RY ORGANISA8JI00NTHER JUDGES· vr::;.Q,'~'o 1:~) OF INTERE 'I I i D - . 'PF.~n-.. .

Fi =St Applicant I

CIRCUIT FITMENT CC (3} REVISED. / '/ Seco d Applicant

. _ .... .2..~.Lr.. ±Q!.3 -··················· -- :,~ ····-······-··-·-and D~Tt.tf:: . · 1GNij..U'fie

MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS

Respondent

First

RECYCLING AND ECONOMIC DEVELOPMENT

INITIATIVE OF SOUTH AFRICA NPC Second Respondent

JUDGMENT

BAMAJ

1. On 16 January 2013 this application came before this Court on an urgent basis. The

applicants applied for the following relief:

"2. It is declared that the first respondent's withdrawal of approval of the Integrated

Industry Waste Tyre Management Plan ("1/WPMP"} of the Second Respondent

contained in Government Notice 987 as published in Government Gazette No 35926

dated 30 November 2012, is null and void and without any legal consequences;

3. The First Respondent's decision contained in Government Notice 988 published in

Government Gazette No 35927 dated 30 November 2012 to approve the Second

Respondent's IIWTMP (hereinafter 'the November REDISA-plan') is reviewed and set

aside.

4. The First Respondent is interdicted and prohibited to proceed with the

implementation of the ~eq:md Respondent's IIWTMP that is contained in the Schedyle

to Government Notice No 988 published in Government Gazette No 35927 dated 30

November 2012.

5. Costs of suit."

2

2. The application is opposed by the respondents, both on urgency and the merits.

I will refer to the parties as follows. First applicant: "RMI"; Second Applicant: "CF CC";

First Respondent: "The Minister"; Second Respondent: "Redisa".

URGENCY

3. On behalf of the applicants, represented by mr de Koning SC and mr Stoop, it was

submitted that in considering the question of urgency, the Court must "assume" that

the applicants' case on the merits is a "good one". In this regard mr de Koning relied on

a remark by Goldstone J, (as he then was), in the matter of 2oth Century Fox Film Corp v

Black Films 1982 (3} SA 582 WLD at 586 G where the following is recorded.

"In my opinion the urgency of commercial interests may justify the invocation of Uniform

Rule of Court 6(12) no less than any other interests. Each case must depend on its own

circumstances. For the purpose of deciding upon The urgency of this matter I assumed,

as I have to do, that the applicants' case was a good one and that the respondent was

unlawfully infringing the applicants' copyright in the films in guestion."{My underlining.)

The contention that this Court, apparently without more, is obliged to assume that the

applicants have a good case, in order to determine urgency, cannot be accepted.

Goldstone J specifically stated that each case must be considered on its own merits. In

my opinion a court has to consider the nature of the merits in order to determine

whether it justified an urgent application without assuming, beforehand, that it is a

"good case". The locus classicus is still Luna Meubel Vervaardigers v Makin and Another

1977{4} SA 135 (WLD}.

Accordingly I ruled that it would be expedient to consider the merits in order to

determine whether the application meets the requirement of urgency in terms of Rule

6(12}, and consequently that the two issues be addressed simultaneously.

A further contention by the applicants involved the findings of Hiemstra AJ and Tuchten

J in case no 51148/12 and Vander Byl AJ in case 50556/12, regarding urgency, based on

similar facts. The application in case no 51148/2012 turned upon the very same issue as

in this case. It however needs to be pointed out that Tuchten J was not called upon to

rule on urgency. The urgency of the application was determined by Hiemstra AJ . It was

contended that the findings of urgency by the said two learned judges in case 51148/12

should have persuasive force. I need not say more about this contention but that

3

although the rulings by those two learned judges are respected, this Court is obliged to

consider the issue of urgency on its own merits, as stated above.

It was further submitted on behalf of the applicants that in view of the fact that the so

called November Plan, referred to in paragraph 3 of the notice of motion, will be

operative from 28 January 2013, involving that members of the first applicant, the

second applicant and members of the public, will be obliged to comply with the plan, on

pain of criminal sanction. This submission, in my opinion, was a persuasive argument in

regards to urgency.

Mr Joubert SC, appearing with mr Swanepoel for the first applicant, contested the

urgency but added that the Minister would prefer the matter be disposed of on the

merits.

I do not intend to discuss all the arguments in regards to urgency in this judgment. It

suffices to say that after having considered all relevant facts and submissions I arrived at

the conclusion, especially in view of the implementation of the November Plan and the

probable consequences, that the application was in fact urgent.

MERITS

4. The litigation between the parties started when the applicants, on an urgent basis,

applied for an order entitling them to a review of the Minister's promulgated Integrated

Industry Waste Management Plan developed by Redisa (the "July Redisa Plan"). This

plan was promulgated on 23 July 2012 and deals with the problem of disposal of waste

motor vehicle tyres. The said application was heard by Tuchten J. On 12 November 2012

the learned judge found that the applicants had "substantial prospects of success" to

succeed with their application to have the decision to approve and promulgate the July

Redisa Plan, reviewed and set aside. The learned judge's ruling was based on his finding

that item 15.1 of the July Redisa Plan, with the heading Waste Reduction Targets, was

probably invalidly added to the promulgated plan by the Minister.

5. Subsequent to the ruling of Tuchten J, on 30 November 2012, the Minister published in

the Government Gazette No 35926 a notice of withdrawal of the July Redisa Plan. On

the same day, in Government Gazette 35927, the Minister published an approval of

what is referred to as the November Redisa Plan. The only difference between the

withdrawn July Redisa Plan and the newly promulgated November Redisa Plan was the

absence of the "offensive" item 15.1 in the latter plan.

4

6. The withdrawal of the July Redisa Plan had the result that the applicants' intended

review of the Minister's decision in that regard, ruled upon by Tuchten J, lost its causa.

-----?:---T-he-dispt~te-in-this-matter-tl:lr-ns-upQn-the-question-whetber....tb.e.Mi.ols.te._._r-"-w...,a""'s....cla""'w'-!...!...>fu"-'-11'-Jy_ ______ _

entitled to withdraw the July Redisa Plan by way of the promulgation on 30 November

2012 and to subsequently promulgate the substituting November Redisa Plan.

8. It is the applicants' case that after the approval of the July Redisa Plan, the Minister was

functus officio and not vested with any power to revoke it in the manner she did.

In this regard it was argued on behalf of the applicants that the approval and

promulgation of the July Redisa Plan were administrative actions, and accordingly, that

the substantial validity and consequences thereof had to be accepted as a fact until

challenged and set aside by a competent court, which did not occur.

It was also stated by the applicants, in their founding affidavit, that the withdrawal of

the July Redisa Plan by the Minister was an unlawful stratagem "to foil the consequences

of the Court order" of Tuchten J in the application in case no 51148/12, entitling the

applicants to their review of the initial decision of the Minister, implying that the

applicants were now effectively prohibited to proceed with their intended review

application.

A further contention of the applicants is found in their Notice of Motion to supplement

their founding affidavit. This contention turns upon the averment that Redisa (Second

Respondent) is not a tyre producer as contemplated in the Waste Tyre Regulations and

was therefore not eligible to submit the plan promulgated by the Minister as the July­

and subsequent November Redisa-plans.

There was no reason why the applicant's application to supplement their founding

affidavit should not have been allowed and it was accordingly granted.

9. It was submitted, and conceded, on behalf of the Minister, that the withdrawal of the

July Redisa Plan by the Minister was a direct consequence of Tuchten J's finding that the

addition of item 15.1 thereto was probably invalid. The Minister's contention is that she

was lawfully entitled to amend the July Redisa Plan.

5

10. On behalf of the Second Respondent, Mr Unterhalter SC, appearing with Mr Louw SC,

submitted that the actions of the Minister compla ined about by the Applicants,

amounted to the amending of legislation which is not administrative actions

contemplated in Promotion of Administrative Justice Act, "PAJAn. On that basis, so it

was argued, the Minister was in law entitled to amend the July Redisa Plan by

withdrawing same and substituting it with the November Redisa Plan, from which the

contents of the offending item 15.1 had been removed.

11. The argument by Mr Unterhalter prompted the applicants to file further heads of

argument. These heads were filed on 18 January, two days after the day the judgment

was reserved on 16 January 2012. I was informed by counsel for the Minister that an

objection would be filed against the s_ubmitting of further heads by the applicant. In

view of the fact that the arguments in this matter lasted more than 4 hours, amidst

more than twenty other urgent applications, no reason existed why supplementary

heads should not have been allowed. On 24 January Redisa filed its heads in reply to

those of the applicants. The Minister did not file any further heads but will however not

be prejudiced in that she will be allowed to respond to the further arguments of RMI if

she so wishes. Both respondents were notified about the applicant's filing of these

further heads. I will therefore give due consideration to same. Due to time constraints

this judgment will unfortunately not be as comprehensive as I would have preferred it

to be, taking into account that the supplementary heads also effectively caused a delay

in the preparation of this judgment.

12. Regarding the submission that the approval and promulgation of the July Redisa Plan

were administrative actions, the applicants relied on the dictum in President of the RSA

v South African Rugby Football Uniori 2000{1} SA 1{CC} at par [140] to (143] .

Par (142] reads as follows:

"As we have seen one of the constitutional responsibilities of the President and Cabinet

Members in the national sphere (and premiers and members of executive councils in the

provincial sphere) is to ensure the implementation of legislation. This responsibility is an

administrative one, which is justiciable, and will ordinarily constitute "administrative

action" within the meaning of s 33. Cabinet Ministers have other constitutional

responsibilities as well. In particular, they have constitutional responsibilities to develop

policy and to initiate legislation. Action taken in carrying out these responsibilities

6

cannot be construed as being administrative action for the purposes of s 33. It follows

that some acts of members of the executive, in both the national and provincial spheres

of government will constitute 'administrative action' as contemplated by s 33, but not all

acts by such members will do so. II

The applicants in this regard also referred to Fedsure Life Assurance v Greater

Johannesburg TMC 1999{1) SA 374 {CC} pars [41]- [42] at 394h- 39F.

The applicants' contention was that the Minister's decision regarding the July plan was,

as an administrative action therefore final and that the Minist er was accordingly functus

officio thereafter.

The applicants further referred to par [143] of the President of the RSA-case, which

reads as follows:

"Determining whether an action should be characterized as the implementation of

legislation or the formulation of policy may be difficult. It will, as we have said above,

depend primarily upon the nature of the power. A series of considerations may be

relevant to deciding on which side of the line a particular action falls. The source of the

power, though not necessarily decisive, is a relevant factor. So, too, is the nature of the

power, its subject-matter, whether it involves the exercise of a public duty and how

closely it is related on the one hand to policy matters, which are not administrative, and

on the other to the implementation of legislation, which is. While the subject-matter of a

power is not relevant to determine whether constitutional review is appropriate, it is

relevant to determine whether the exercise of the power constitutes administrative

action for the purposes of s 33. 11

13. It was further pointed out by the applicants that the Minister stated in par 49.2 (page

258) that she, concerning the actions complained about, in fact performed

administrative actions.

In this regard the applicants relied on the following decisions pertaining to the

submission that an administrative decision cannot be withdrawn without a compelling

or authorizing court order. The Judicial Service Commission et at v The Cape Bar Council

eta/ (Unreported SCA case no 818/2011}, par [13L and Camp's Bay Ratepayers and

Residents' Association v Harrison 2011 {4}{ SA 42 (CC) par [62] at 67 G.

In regards to this issue the applicants argued that the ruling of Tuchten J, in respect of

the probable invalidity of par 15.1 of the July Redisa plan, was not a court order at all.

This, so it was submitted, was clearly stated in the judgment ofTuchten J in case no

51148/2012.

7

14. It was further argued by the applicants that the Minister was therefore not entitled to

proceed with that administrative action without having complied with the provisions of

and the procedure prescribed in the National Environmental Management: Waste Act,

No 59 of 2008 (The "Waste Act//) nor The Waste Tyre Regulations, 2009 {"The

Regu!ationsi/L promulgated in terms of the Environmental Conservation Act of 1989

("ECA"). In this regard it was submitted that not even implied power to withdraw the

July Plan could have been derived from the relevant enabling legislation.

15. In developing the applicants' argument it was submitted that if the withdrawal of the

July Redisa Plan was invalid it should follow that the promulgation of the substituting

November plan should also be held to be invalid, following the logic corollary of the fact

that a valid promulgation of the November plan depended on a valid withdrawal of the

July plan.

In the alternative it was argued on behalf of the applicants that Regulation 12{2) of the

Regulations makes it obligatory for the Minister to publish a revised plan in the

Government Gazette for a period of 30 days.

16. Based on the ruling of Tuchten J that the contents of item 15.1 of the July plan were

material, it was submitted that the Minister was obliged, in the circumstances, well

knowing that the applicants and the second respondent were interested parties, as far

as the November plan was concerned, to follow the procedure provided for in in the

Regulations.

It was further submitted that the conduct of the Minister complained about was at odds

with what is contemplated in s 4 of Promotion of Administrative Justice Act, Act 3 of

2000 and s 2{4)(k) of National Environmental Management Act, Act 107 of 1998.

The applicants in this regard also contended that the Minister was obliged to follow the

consultative process provided for in sections 72 and 73 of the Waste Act.

17. The issue raised by the applicants that the second respondent in their supplemented

founding affidavit was not a "tyre producer'' as defined in the Regulations, and therefore

not a qualified person or entity entitled to apply for the approval of a Waste Tyre

Management Plan, was pursued in argument and it was submitted that the Minister's

approval of the November Redisa Plan was therefore, in any event, ultra vires the

relevant Regulations.

8

18. Finally it was submitted that the inclusion of "solid tyres" in the November plan was

ultra vires in view of the fact that the definition in the Regulations exclude solid tyres. In

this regard the applicants' relied on the report by mr J H Jooste emphasizing that the

definition of "tyre" excludes solid tyres.

19. On behalf of the Minister counsel relied on the judgment by Vander Byl AJ, dated 19

September 2012, in which the learned judge ruled against the applicants. In that case

the first applicant and another applied for a temporary interdict restraining the

respondents (The Minister was cited as the first Respondent) from "causing or

threatening any tyre producer who intend to subscribe to the First Applicant's integrated

Industry Waste Tyre Management Plan as re-submitted, with prosecution or sanction in

consequences of such tyre producer failing to comply with the Integrated Industry Waste

Tyre Management Plan of the third respondent", and in part B of that application an

order was sought "declaring that pending the determination of the first applicant's

Integrated Industry Waste Tyre Management Plan, as re-submitted, tyre producers who

intend to subscribe to the First Applicant's integrated industry management pla(l, are

not obliged to comply with the Integrated Industry Waste Tyre Management Plan of the

third respondent". (The third respondent in that matter is the second respondent in this

application and the "waste management plan" of the third respondent referred to is the

July Redisa Plan in this application.)

20. It is further contended on behalf of the Minister that the relief sought in paragraph 4 in

this application ''flies in the face" of the ruling of the learned judge in the latter

judgment referred to above. It was argued that the Minister clearly stated that the July

Redisa Plan was in fact withdrawn on the 30th November 2012 as a result of the finding

of Tuchten J in case no 51148/12 pertaining to the validity of paragraph 15.1 of the plan.

Although the issues seem to be related, the relief sought in that case and the ruling by

that Court, in my opinion, cannot have any effect on the relief sought in this application.

21. It was further submitted by mr Joubert that the Ministers withdrawal of the July Redisa

Plan and the approval of the November Plan constituted action that was, at least by

implication, authorized by enabling legislation. This argument was supported by

9

mr Unterhalter, who added that if the relevant actions of the Minister were in fact

administrative actions, Redisa would concede that said withdrawal by the Minister

would then have been invalid.

22. The applicants' arguments were countered in comprehensive heads by both

respondents and I was referred to numerous authorities. In the circumstances I did not

deem it necessary to discuss all the arguments and authorities in detail. Although I did

consider all the submissions and relevant decisions, I will refer herein later to only

certain specific issues and arguments which, in my view, are the most important.

23. Regarding the point taken by the applicants that Redisa was not entitled to apply for

the approval of the July Plan, based on the argument that Redisa was not a "tyre producer", as contemplated and required in the Regulations, it appears from the second

respondent's answering affidavit, more specifically annexure Rl at page 389, that Redisa

in fact represents members in that category and does therefore indeed have the

required status. In my opinion there is no merit in this point.

24. In order to determine whether the relevant actions of the Minister constitute

administrative actions, it has to be considered exactly what the Minister's intention was

with the approval and promulgation of both the July and the November Redisa Plans.

In enacting the Waste Act, the legislature intended to protect the constitutionally

entrenched right to a clean, healthy and sustainable environment. Section 80(2) of the

said Act, empowers the Minister to promulgate regulations and directions pertaining to

inter alia waste tyre management. Waste tyre management is clearly of national

importance and seems to be a priority attended to by the Minister.

The promulgation of the July Redisa Plan apparently had a relatively long history. Save

for the point whether Redisa was entitled to be involved in the July plan, to which I have

alluded to above, this Court is not concerned about any issue regarding the previously

intended review of the promulgation thereof.

10

25. The Minister} in her answering affidavit, as pointed out by the applicants} conceded that

the reason for withdrawing the July Redisa Plan was a direct result of the judgment of

Tuchten J in respect of the validity of item 15.1 In the said judgment the learned judge

remarked that the Minister II can legitimately withdraw her approval of the Redisa plan

as approved and published on 23'd July 2012 and apply her mind to the version of the

plan minus item 15.1 that was put up for comment, with a view to acting in relation to

that version to the Plan under regulation 11(1}(d). I emphasise that I come to no

conclusion on the point. The decision is for the Minister to takej not the courts. N

On behalf of the Minister mr Joubert submitted that the Minister "acted positively,

consequent upon the judgment of Tuchten J".

26. An overview of the whole situation reveals the following. The applicants were aggrieved

by the inclusion of item 15.1 in the July Redisa Plan. In accordance with the application

before Tuchten JJ and his judgment, the applicants intended to have the July Redisa Plan

reviewed and set aside because it contained item 15.1. Subsequently, after the removal

of the 11offensiveN item 15.11 the applicants are still aggrieved, now by the "unlowfuiN

withdrawal of the complained about item 15.1.

27. Section 32(1) of the Waste Act provides as follows:

"The Minister, acting in terms of section 28{1} or 29{1} .. . may on receipt of an industry

waste management plan-

( a) approve the plan in writing, with any amendments or conditions, and give directions

for the implementation of the plan;" {My underlining.)

Section 72(1) of the Waste Act provides the following:

"Before exercising a power which in terms of this act, must be exercised in

accordance with this section and section 73, the Minister . .. must follow such

consultative process as may be appropriate in the circumstances.

Section 73(1) provides:

"Before exercising a power that, in terms of this Act, must be exercised in

accordance with this section, the Minister . . . must give notice of the proposed exercise

of the relevant power-"

11

28. In my opinion it is also of importance to determine what exactly the content of item

15.1 was all about, including the impact and importance thereof and what effect the

deletion thereof has. The complained of contents of item 15.1 read as follows:

Waste Reduction Targets

The following are the targets for waste reduction:

• Within 12 months processing 30 000 tons/year of waste tyres using existing waste tyre

processors.

• Within 24 months, processing of 90 000 tons/year of waste tyres.

• Within 36 months, processing of 150 000 tons/year of waste tyres.

• Within 60 Months, processing of 400 000 tons/year waste tyres arising.

This will be subject to industry participants being compliant to the scorecard criteria and the

timeous processing of EIA applications.

Note that the tonnages to be processed w ill include an increasing proportion of historical tyres

to approximately 25% by year 5.

29. It was found by Tuchten J that every material provision of the waste plan had to be

published in the Government Gazette as provided for in section 73 of the Waste Act. I

am in respectful agreement with this finding. Pertaining to the question of whether the

contents of item 15.1 were material to the July Redisa plan, I am however, with respect,

unable to agree. In my view item 15.1 envisaged nothing more than a prospected

forecast of what targets were envisaged for the future. I could find no indication that

the contents of item 15.1, or the lack thereof, could have had any effect on the

implementation of the plan. The waste plan was not at all regulated by or dependent

upon the existence of item 15.1.

30. In my view it seems clear that the Minister's withdrawal of the July Plan was well

motivated. There can be no doubt that the Minister was duty bound in terms of the

relevant legislation to ensure that the Waste Tyre Management should proceed and be

implemented.

12

31. I duly considered the issue of whether solid tyres should be excluded from the Waste

Plan, because, as contended by the applicants, the definition of tyres in the Waste Act

excludes solid tyres. I have already, in par 18 above, referred to the applicants'

contention in this regard and their reliance on the opinion of mr Jooste. The Minister, on

the other hand, relied on the expertise of mr JF Botha, who has a different opinion. I do

not intend to elaborate on my consideration of this issue save to say that the only

distinction between solid tyres and pneumatic tyres, for the purpose of Waste Tyre

Management, seems to be irrelevant and solely of academic value. In my view both

types of t yres are indeed tyres for the purpose of Waste Tyre management. The

difference between the two types of tyres is the construction and not the principle.

32. It was argued by mr Joubert that the Minister's withdrawal did not constitute illegal

administrative action in that the Minister was lawfully entitled, in terms ofthe

provisions of Regulation 12(1), under the heading "Review of Integrated Industry Waste

Tyre Management Plans" to request an earlier revision or resubmission for approval of

an already approved plan. It was further submitted that the Minister was not functus

officious as contended by the applicants. In this regard reference was made to inter alia

Financial Services Board and Another v De Wet NO and Others 2002 (3} SA 525 par

[147]and Carlson Investments Shareblock (Pty) Ltd v Commissioner, South African

Revenue Services 2001 (3} SA 210 {W) at 225F-232E-H.

The gist of the said two decisions seems to be that in given circumstances, where a

particular administrative decision is in the public interest and in the interests of justice,

such a decision may be amended or withdrawn, whatever the case may be.

The submission of mr Joubert in this regard, seems to meritorious.

33. The submissions by mr Joubert, relying on LAWSA VOL 1 Par 93, further entailed that

"Legislative ac'tions of the administration may be amended .. . "

This latter argument was included in mr Unterhalter's submissions that the Minister had

delegated legislative powers empowering her to promulgate the Waste Tyre

Management plans and therefore to withdraw the promulgation of the July Redisa Plan

in the circumstances. These acts of the Minister, argued mr Unterhalter, should be

distinguished from administrative decisions. It was further submitted by mr Unterhalter

that the doctrine of functus officio is not applicable to subordinate law making, which is

in principle subject to amendment. In this regard reference was made to Hoexter -­

ADMINISTRATIVE LAW in SOUTH AFRICA {"Hoexter") p 278.

13

34. It was further submitted on behalf of both respondents that sec 10(3) of The

Interpretation Act 33 of 1957 is the empowering legislation in regards to the

amendment etc of regulations or by-laws.

In my view section 32(1) (a) of the Waste Act empowers the Minister to amend any

promulgated Waste Tyre management plan. It must further be taken into account what

exactly the implication of the deletion or removal of the complained about item 15.1

really entailed. I have already alluded to the issue whether the contents of item 15.1

were material and that this Court, again respectful, differs from the finding of Tuchten J

that it was in fact material. In my view it must also be considered whether anybody, or

entity, will probably be prejudiced by the deletion of the contents of item 15.1. It did

not seem to me, at this point in time, that any party involved would be prejudiced at all.

It further appears that the question of future prospects and targets regard ing waste tyre

management, what item 15.1 was clearly about, is a consideration that can easily be

separated from the actual waste control contemplated by the Minister with the

promulgation of the November Redisa Plan.

35. In any event, in my opinion, the July- and November Redisa Plans indeed constituted

subordinated law making. The Waste Tyre management cannot be regarded as

administrative action as contemplated by PAJA, even if the Minster considered it to be

administrative actions. I am, in this regard, inclined to agree with the submission on

behalf of Redisa. See in this regard Hoexter p 52 and 53 where the learned author

discusses the "characteristics" of legislation.

36. Accordingly the applicants' application cannot succeed.

37.

Order:

The application is dismissed with costs. The costs include the costs of two counsel employed by

respondents.

A J B Acting Judge of the High Court.

25 January 2013