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THE LAW AND HAZARDOUS
WASTE JUSTICE ACT
Eksteen van Wyk
14 July 2016
Now
• Gauteng is currently receiving an unprecedented amount of
hazardous waste for disposal , recycling or for treatment
from other countries
• The waste going to Gauteng comes from African countries
such as Tanzania, Lesotho, Mozambique, Namibia, Ghana,
Nigeria etc.
• Additionally, some local recyclers source the waste from
overseas or are lobbied to receive such hazardous waste
from overseas
• Translocation of hazardous waste often from developed
countries to developing countries
Now II
• South Africa and Gauteng increasingly experience the
import of used products such as used tyres and electronic
equipment
• However, often these products arrive in the country or
province only to be found non-functional or unusable
• So they become waste
Constitution
• Preamble: improvement of quality of life emphasized
• Section 2
o Supreme law of RSA
o Invalid actions and law
o Obligations imposed to be observed
• Section 24 (everyone)
a) to environment not harmful to health or wellbeing
b) To have environment protected
a)
b)
c)
d)
Current generation
Future generations
Legislative and other measures
Prevent pollution and ecological degradation
NEMA
• Preamble: many inhabitants of South Africa live in an
environment harmful to their health and well-being
• Preamble: everyone has the right to an environment that is
not harmful to his or her health or well-being
• Preamble: the State must respect, protect, promote and
fulfil the social, economic and environmental rights of
everyone
• Preamble quotes Section 24
• Section 2 Principles:
o Guidelines for interpretation environmental laws
o (4)(a)(ii) - that pollution and degradation of the environment are
avoided, or, where they cannot be altogether avoided, are
minimised and remedied
NEMA II
• (4)(a)(iv) that waste is avoided, or where it cannot be altogether
avoided, minimised and re-used or recycled where possible and
otherwise disposed of in a responsible manner
• (4)(a)(vii) that a risk-averse and cautious approach is applied, which
takes into account the limits of current knowledge about the
consequences of decisions and actions
• (4)(a)(viii) that negative impacts on the environment and on people's
environmental rights be anticipated and prevented, and where they
cannot be altogether prevented, are minimised and remedied
• (4)(c) environmental justice must be pursued so that adverse
environmental impacts shall not be distributed in such a manner as to
unfairly discriminate against any person, particularly vulnerable and
disadvantaged persons
• (4)(e) Responsibility for the environmental health and safety
consequences of a policy, programme, project, product, process,
service or activity exists throughout its life cycle
NEMA II
• 4(n) global and international responsibilities relating to the
environment must be discharged in the national interest
• 4(p) the costs of remedying pollution, environmental degradation and
consequent adverse health effects and of preventing, controlling or
minimising further pollution, environmental damage or adverse health
effects must be paid for by those responsible for harming the
environment
NEMWA
• Definition of 'hazardous waste' deleted by s. 1 (b) of Act 26
of 2014???
• However SAWIC defines "hazardous waste" as 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 and
includes hazardous substances, materials or objects within
the business waste, residue deposits and residue stockpiles
• Preamble: the impact of improper waste management
practices are often borne disproportionately by the poor
• Preamble: poor waste management practices can have an
adverse impact both locally and globally
International Instruments
• The impact of improper waste management practices
globally are often borne disproportionately by the poorer
nations/ developing world
• Basel Convention
• Bamako Convention
• Basel Response to Bamako
Basel Convention
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•
International treaty 1989
Regulating trans-boundary movement of hazardous waste
Seeks to regulate, not to prohibit
If a country intends exporting hazardous waste to another
o a consultation with the destination country is required
o the destination location needs to be communicated to the
destination country
o destination country needs to accept shipment before
• Aim is to make movement of hazardous waste very costly –
negative incentive for industries to cut down on production
of hazardous waste
• Ratified by RSA in 1994
Bamako Convention
•
•
•
•
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Continental treaty 1990
African developing nations feel that Basel inadequate
More stringent than Basel
Total ban on the import of hazardous waste into Africa for
any reason
Not even for recycling or reclamation
However intra-African translocation allowed
Criticism – unsustainable
Edna Molewa in Pariament in 2014 - RSA not intending to
ratify, because of potential negative impact on RSA waste
management industry
RSA to date has not ratified Bamako
Basel Response to Bamako
• Ban Amendment to the Basel Convention
• 1995
• Prohibits export of hazardous waste from developed
countries, directing no export of their waste to developing
countries
• Aims to protect developing countries, which may not have
the capacity to deal with hazardous waste, from the imports
of hazardous waste from developed countries
• Indications are that it will be ratified by RSA
• 13 October 2015 NCOP Committee Ban Amendment under
Basel Convention discussed
• DIRCO Newsflash 17 July 2014: Cabinet approved that RSA
ratify Ban Amendment under Basel Convention
Implications
• RSA may only accept hazardous waste from SADEC countries
not having the capacity to deal with hazardous waste
• RSA may export the hazardous waste RSA cannot handle,
but then only to countries (e.g. EU) having the capacity to
deal with such hazardous waste
• DEA in NCOP Committee in 2015: no negative economic
implications - imports of hazardous waste from non-SADEC
countries for recovery or final disposal already restricted
The End
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