The Supreme Court of Appeal (SCA) judgment handed down in the matter of Minister of Environmental Affairs v ArcelorMittal South Africa Ltd in April this year (AMSA Judgment) has far-reaching implications for how "waste" (as defined) is regulated under the National Environmental Management: Waste Act, 2008.
The judgment concerned AMSA's treatment and management of its Basic Oxygen Furnace slag (BOF slag) at one of its operations. The SCA found that temporarily stockpiled, crushed and screened BOF slag intended for sale to third parties is not waste as it is not unwanted, rejected, abandoned or discarded by AMSA. It also found that any reclaimed BOF slag that had initially been deposited (as waste) onto AMSA's existing slag disposal site, immediately ceases to be waste once reclaimed and recycled for sale.
The AMSA Judgment provides precedent that what constitutes a "waste" is not always clear-cut, i.e. slag is not always a 'waste' just because it is slag - it is either a waste or a by-product, depending on the circumstance. This precedent has endorsed the long-standing view that determining what constitutes a waste depends on the intention of the party handling the material / substance and on whether the material / substance has commercial value to the holder.
Whilst the AMSA Judgment opens doors to incredible opportunities for the circular economy and reducing what were historically considered waste footprints; opportunists seeking to capitalise on these opportunities are encouraged to properly consider the feasibility of such projects. In addition, what constitutes commercial value, how current (and pending) waste exclusions should now be treated (under the Waste Exclusion Regulations, 2018) and the status of any existing waste management licences issued for activities which would no longer be considered to be waste management activities should be properly considered.
