THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 342/2019
In the matter between:
MINISTER OF ENVIRONMENTAL
AFFAIRS

FIRST APPELLANT
DEPUTY DIRECTOR-GENERAL: LEGAL,
AUTHORISATIONS, COMPLIANCE
AND ENFORCEMENT

SECOND APPELLANT
and
ARCELORMITTAL SOUTH AFRICA
LIMITED

RESPONDENT

Neutral citation: Minister of Environmental Affairs and Another v
ArcelorMittal South Africa Limited (Case no 342/2019)
[2020] ZASCA 40 (17 April 2020)
Coram:
PETSE DP, SWAIN, MOKGOHLOA and MBATHA JJA and
KOEN AJA
Heard:
21 February 2020
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 17 April 2020

Summary: Environmental law – protection of environment – prohibition
against undertaking identified activities without authorisation – nature and
scope of the powers of environmental authorities – pre-existing activities prior
to enactment of Environmental Conservation Act 73 of 1989 as well as
National Environment Management Act 107 of 1998 (NEMA) that have not
been declared as identified activities not subject to the strictures of NEMA
and National Environment Management Waste Act 59 of 2008 (NEM:WA) –
Basic Oxygen Furnace slag that is not unwanted or rejected or abandoned not
constituting waste as defined in NEM:WA – waste management licence in
terms of s 49(1)(a) of NEM:WA not required in order to deal with such slag.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Molefe J,
sitting as court of first instance): judgment reported sub nom Arcelormittal
South Africa Limited v Minister of Environmental Affairs and Another [2018]
ZAGPPHC 577; 2018 JDR 0957 (GP).
The appeal is dismissed with costs, including the costs of two counsel.
The order of the High Court is supplemented to the extent reflected
below:
‘The directive and compliance notice issued by the Deputy Director-General:
Legal, Authorisation, Compliance and Enforcement on 7 December 2015 are
reviewed and set aside.’

JUDGMENT

Petse DP (Swain, Mokgohloa and Mbatha JJA and Koen AJA
concurring)

Introduction
[1] This appeal is against an order1 of the Gauteng Division of the High
Court, Pretoria (the High Court) in terms of which the decisions of the first

1 The High Court granted an order in the following terms:
‘1.  The first respondent’s (“Minister”) decision dated 5 July 2016, dismissing the applicant’s appeal lodged
on 6 January 2016 in terms of section 43(8) of the National Environmental Management Act 107 of 1998
(“NEMA”) against the directive issued by the second respondent against the applicant in terms of section
28(4) of the NEMA dated 7 December 2015, is reviewed and set aside;
2.  The Minister’s decision dated 5 July 2016, dismissing AMSA’s objection lodged on 6 January 2016 in
terms of section 31M of the NEMA against the compliance notice issued by the DDG against the applicant
in terms of section 31L of the NEMA dated 7 December 2015 (“compliance notice”) is reviewed and set
aside;

appellant, the Minister of Environmental Affairs (the Minister), were
reviewed and set aside and a declarator issued. The Minister had, on 5 July
2016, dismissed the internal appeal lodged by the respondent, ArcelorMittal
South Africa Limited (AMSA), under s 43(8) of the National Environmental
Management Act 107 of 1998 (NEMA) against the directive and AMSA’s
objection to the compliance notice issued by the second appellant, the Deputy
Director-General: Legal, Authorisations, Compliance and Enforcement (the
DDG) in terms of s 31L of NEMA on 7 December 2015.

[2] The appeal, in essence, raises four interrelated questions. The first is
whether AMSA was precluded from disposing its Basic Oxygen Furnace slag
(BOF slag) at its disposal site which it had operated since the 1970s, and from
selling recycled BOF slag to its customers in the road construction and
agricultural sectors without a waste management licence (WML) or
exemption under ss 49 and 74, respectively, of the National Environmental
Management: Waste Act 59 of 2008 (NEM:WA). The second is whether
customers to whom AMSA sold its BOF slag required a WML in order to
purchase AMSA’s BOF slag. The third is whether the issuance to AMSA by
the
Department
of
Environmental
Affairs
(the
Department)
of
decommissioning and construction licences in 2011 meant that AMSA could
no longer exercise its pre-existing rights that it had enjoyed long before the
coming into operation of the Environmental Conservation Act 73 of 1989
(ECA), and later the NEM:WA. The fourth is whether the High Court was
correct, in the context of the facts of this case, to: (a) review and set aside the
Minister’s decision to dismiss AMSA’s internal appeal; and (b) grant

3.  A declaratory order that the existing Basic Oxygen Furnace (“BOF”) slag disposal site which the applicant
operated since the late 1970s, did not require a disposal waste management licence in terms of the National
Environmental Management Waste Act 59 of 2008 (“NEM:WA”) for its lawful operation;
4.  The respondents to pay the costs of this application, including the costs of two counsel, jointly and
severally, the one paying the other to be absolved.’

declaratory relief. The appeal comes before this Court with the leave of the
High Court.

[3] This appeal is about the protection of the environment against
degradation and its attendant ill effects on humans and the ecosystem as well
as the interpretation of the relevant regulatory statutory framework. It is also
concerned with the powers and obligations of the environmental authorities
which fall under the auspices of the Department to regulate activities that may
have a substantial detrimental impact on the environment.

[4] Section 24 of the Constitution of the Republic of South Africa Act 108
of 1996 (the Constitution) provides that:
‘Everyone has the right—
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.’
The NEMA and the NEM:WA are two legislative measures contemplated in
s 24 of the Constitution.

[5] The preamble to NEMA, after acknowledging that ‘many inhabitants
of South Africa live in an environment that is harmful to their health and well-
being’, recognises the right of everyone ‘to an environment that is not harmful
to his or her health and well-being’. It imposes an obligation on the State to
‘respect, protect, promote and fulfil the social, economic and environmental
rights of everyone and strive to meet the basic needs of previously
disadvantaged communities’.

[6] On the other hand, the long title of the NEM:WA describes its
overarching purpose as being to reform the law regulating waste management.
This, it continues, is ‘in order to protect health and the environment by
providing reasonable measures for the prevention of pollution and ecological
degradation and for securing ecologically sustainable development’. To this
end, the NEM:WA makes provision for, inter alia, ‘the licensing and control
of waste management activities’; ‘the remediation of contaminated land’; and
for ‘compliance and enforcement’ measures.2

The parties
[7] The first appellant is the Minister of Environmental Affairs. The second
appellant is the Deputy Director-General: Legal, Authorisations, Compliance
and Enforcement in the employ of the Department. He is the functionary who
issued the directive and compliance notice that were central to the review
application in the High Court. For convenience, I shall hereinafter refer to the
Minister and DDG collectively as the appellants, unless the context dictates
otherwise.

[8] The respondent is ArcelorMittal South Africa Limited which is a public
company incorporated in terms of the company laws of the Republic. It has
its registered address at Delfos Boulevard, Vanderbijlpark in Gauteng. AMSA
is one of the country’s oldest and leading steel manufacturers. It manufactures
various steel products that include, amongst others, rods, billets and
reinforcing bars. This appeal relates to its Newcastle operations.

The facts

2 Some of these objectives are either echoed or elaborated on in s 2.

[9] As already indicated, AMSA manufactures, as its core business, various
steel products. It has been doing so for decades now and at least from the
1970s. One of the by-products of its steel manufacturing process is what
AMSA describes as the Basic Oxygen Furnace slag (BOF slag). The BOF slag
is formed in the course of the conversion of liquid iron, from the blast furnace,
into steel in a basic oxygen furnace. Upon completion of the process, molten
crude steel gathers at the base of the furnace whilst the liquid slag floats on
top. The crude steel and the slag are tapped into separate pots in a process
generating temperatures above 1500° centigrade.

[10] At its Newcastle operations, AMSA’s BOF slag is derived from two
sources. These are described by AMSA as ‘current arisings’, which is BOF
slag that has been temporarily stockpiled, crushed and screened for delivery
to third parties for use either as lime in the agricultural sector for soil
conditioning or as an aggregate in road construction and rehabilitation. The
other source is what is called ‘reclaimed slag’. Reclaimed slag represents BOF
slag that is temporarily deposited into AMSA’s disposal site for storage
because it cannot be immediately sold as a secondary product to third parties.
Nevertheless, it remains, despite its temporary deposit into a waste disposal
site, of commercial value to AMSA. When it is required for sale to third
parties it is retrieved from the disposal site, crushed and screened on-site by
another entity acting as AMSA’s agent in order to convert it to the
specifications required by AMSA’s customers. The sale of BOF slag, be it in
the form of current arisings or reclaimed slag, generates revenue for AMSA
which equates to an average of some R1,1 million per month.

[11] During February 2013, Environmental Management Inspectors from
the Department of Water Affairs conducted what the DDG described as a
‘second follow-up inspection’ of AMSA’s Newcastle operations with a view

to determining whether AMSA complied with the ‘newly issued and
applicable permits/licences/authorisations’ at its sites. This was followed by a
notice issued by the Department to AMSA under s 31H of the NEMA.3

3 Section 31H reads:
‘General powers.
(1) An environmental management inspector, within his or her mandate in terms of section 31D, may—
(a) question a person about any act or omission in respect of which there is a reasonable suspicion that it
might constitute—

(i)
an offence in terms of a law for which that inspector has been designated in terms of that
section;

(ii) a breach of such law; or

(iii) a breach of a term or condition of a permit, authorisation or other instrument issued in terms
of such law;
(b) issue a written notice to a person who refuses to answer questions in terms of paragraph (a), requiring
that person to answer questions put to him or her in terms of that paragraph;
(c) inspect, or question a person about, any document, book or record or any written or electronic
information—

(i)
which may be relevant for the purpose of paragraph (a); or

(ii) to which this Act or a specific environmental management Act relates;
(d) copy, or make extracts from, any document, book or record or any written or electronic information
referred to in paragraph (c), or remove such document, book, record or written or electronic
information in order to make copies or extracts;
(e) require a person to produce or deliver to a place specified by the inspector, any document, book or record
or any written or electronic information referred to in paragraph (c) for inspection;
(f) inspect, question a person about, and if necessary remove any specimen, article, substance or other item
which, on reasonable suspicion, may have been used in—

(i)
committing an offence in terms of the law for which that inspector has been designated in terms
of section 31D;

(ii) breaching such law; or

(iii) breaching a term or condition of a permit, authorisation or other instrument issued in terms of
such law;
(g) take photographs or make audio-visual recordings of anything or any person that is relevant for the
purposes of an investigation or for a routine inspection;
(h)
dig or bore into the soil;
(i) take samples;
(j) remove any waste or other matter deposited or discharged in contravention of the law for which that
inspector has been designated in terms of section 31D or a term or condition of a permit,
authorisation or other instrument issued in terms of such law; or
(k) carry out any other prescribed duty not inconsistent with this Act and any other duty that may be
prescribed in terms of a specific environmental management Act.
(2) A written notice issued in terms of subsection (1)(b) must be in the prescribed format and must require
a person to answer specified questions either orally or in writing, and either alone or in the presence of a
witness, and may require that questions are answered under oath or affirmation.
(3) A person who receives a written notice in terms of subsection (1)(b), must answer all questions put to
him or her truthfully and to the best of his or her ability, notwithstanding that an answer might incriminate
him or her, but any answer that incriminates such person may not be used against him or her in any subsequent
criminal proceedings for an offence in terms of this Act or a specific environmental management Act.
(4) An environmental management inspector must—
(a) provide a receipt for—

(i)
any document, book, record or written or electronic information removed in terms of
subsection (1)(d); or

(ii)
any specimen, article, substance or other item removed in terms of subsection (1)(f); and
(b) return anything removed within a reasonable period or, subject to section 34D, at the conclusion of

any relevant criminal proceedings.

[12] Several exchanges followed between the Department and AMSA, the
latter making representations which culminated in the DDG issuing a pre-
compliance notice and pre-directive on 23 July 2014. These were followed by
further representations from AMSA on 22 September 2014 and 5 December
2014, a meeting between the representatives of AMSA and the Department,
concluding with further representations by AMSA on 21 September 2015.
AMSA’s representations had a single objective, which was to dissuade the
Department from issuing a compliance notice and directive as foreshadowed
in the pre-compliance notice and pre-directive of 23 July 2014. However, all
of these exchanges came to naught for, on 7 December 2015, the DDG issued
combined compliance notice and directive under ss 31L4 and 28(4)5 of the
NEMA, respectively.

(5) In addition to the powers set out in this Part, an environmental management inspector must be regarded
as being a peace officer and may exercise all the powers assigned to a peace officer, or to a police official
who is not a commissioned officer, in terms of Chapters 2, 5, 7 and 8 of the Criminal Procedure Act, 1977
(Act No 51 of 1977)–
(a) to comply with his or her mandate in terms of section 31D; and
(b) within the area of jurisdiction for which he or she has been designated.’
4 Section 31L reads:
‘Power to issue compliance notices.
(1) An environmental management inspector, within his or her mandate in terms of section 31D, may issue
a compliance notice in the prescribed form and following a prescribed procedure if there are reasonable
grounds for believing that a person has not complied—
(a) with a provision of the law for which that inspector has been designated in terms of section 31D; or
(b) with a term or condition of a permit, authorisation or other instrument issued in terms of such law.
(2) A compliance notice must set out—
(a) details of the conduct constituting non­compliance;
(b) any steps the person must take and the period within which those steps must be taken;
(c) anything which the person may not do, and the period during which the person may not do it; and
(d) the procedure to be followed in lodging an objection to the compliance notice with the Minister or
MEC, as the case may be.
(3) An environmental management inspector may, on good cause shown, vary a compliance notice and
extend the period within which the person must comply with the notice.
(4) A person who receives a compliance notice must comply with that notice within the time period stated in
the notice unless the Minister or MEC has agreed to suspend the operation of the compliance notice in terms
of subsection (5).
(5) A person who receives a compliance notice and who wishes to lodge an objection in terms of section 31M
may make representations to the Minister or MEC, as the case may be, to suspend the operation of the
compliance notice pending finalisation of the objection.’
5 Section 28(4) reads:
‘(4) The Director-General, the Director-General of the department responsible for mineral resources or a
provincial head of department may, after having given adequate opportunity to affected persons to inform
him or her of their relevant interests, direct any person who is causing, has caused or may cause significant
pollution or degradation of the environment to—
(a) cease any activity, operation or undertaking;

[13] So far as is relevant for present purposes, the compliance notice advised
AMSA that its disposal of BOF slag into the existing BOF slag disposal site
(BOFSDS) was unlawful as AMSA was not a holder of a WML issued in
terms of s 49(1)(a) of the NEM:WA. In addition, the DDG took the view that
the sale of BOF slag, either in the form of current arisings or reclaimed slag,
required the third parties to whom the slag was sold to hold WMLs in terms
of NEM:WA. Paragraph 11.1 of the compliance notice called upon AMSA to
‘[i]mmediately (within 24 hours) cease with the disposal of waste into the
BOF slag disposal site until such time that the Department agrees in writing
that activities may recommence’. The notice further required AMSA to
forthwith desist from selling slag to third parties unless those parties could
demonstrate that they held the requisite licences.6

[14] The DDG justified his invocation of s 31L of NEMA on the grounds
that AMSA was operating a BOFSDS without a WML. The DDG tellingly
noted that this BOFSDS had ‘commenced operation prior to 1997’. As to the
directive, the DDG raised several concerns about AMSA’s activities which he
considered caused or had the potential to cause significant pollution or
degradation of the environment. He listed, amongst other things, the following
activities to underscore his assertions: (a) dumping of waste on unlined area;
(b) absence of adequate and effective stormwater management; (c) use of an
unlined slag and tar mixing area without reasonable preventive or mitigating

(b) investigate, evaluate and assess the impact of specific activities and report thereon;
(c) commence taking specific measures before a given date;
(d) diligently continue with those measures; and
(e) complete those measures before a specified reasonable date:
Provided that the Director-General or a provincial head of department may, if urgent action is necessary for
the protection of the environment, issue such directive, and consult and give such opportunity to inform as
soon thereafter as is reasonable.’
6 Paragraph 11.3 of the notice in its amended form read:
‘Immediately cease with the selling of the slag emanating from the BOF to outside companies, unless proof
that said companies are in possession of a WML and/or until such time as the Department agrees to whom
and in what manner of the selling of BOF slag will be condoned. Provide the Department with a list of
companies that your BOF slag has been sold to this far, within seven (7) working days’.

measures in place; (d) use of an unlined scrap storage area that was likely to
contaminate soil and groundwater with heavy metals in the event of leakage;
(e) leaking sulphuric acid tank outside the pulverised coal injector; (f) unlined
temporary slag storage area inside and outside the blast furnace; (g) unlined
scrap yard outside the steel plant; (h) unlined slag storage area outside the
steel plant; (i) disposal of slag at the unlined BOF slag disposal site; (j) unlined
waste water emergency dam which was likely to cause groundwater
contamination through seepage; (k) use of silted evaporation tanks; and (l)
sale of slag to companies that were not in possession of the requisite WMLs.

[15] As a result of these perceived infractions, the DDG directed AMSA to:
(a) ‘[i]mmediately cease with the disposal of waste into the BOF slag disposal
site until such time that the Department agrees in writing that activities may
recommence’; and (b) ‘[i]mmediately cease the selling of slag to outside
companies, unless proof that [the] said companies are in possession of a
WML, has been obtained. Provide the Department with a list of companies
that your slag has been sold to thus far, within seven (7) working days and
proof that [the] said companies are in possession of the required waste
management licences’.

[16] The directive went on to draw AMSA’s attention to the provisions of
ss 20(b) and 67(1)(a) of the NEM:WA. Section 67(1)(a) makes it an offence
for anyone to commence, undertake or conduct a waste management activity,
except in accordance with a WML issued in respect of that activity. And
s 68(1) provides that any person who contravenes or fails to comply with s 20
will, upon conviction, be liable to a fine not exceeding R10 million or to
imprisonment not exceeding ten years or to both such fine or imprisonment.

[17] All attempts by AMSA to convince the DDG that it was not subject to
the strictures of the ECA, the NEMA and the NEM:WA, because those Acts
were enacted long after AMSA had been conducting its operations, and
seeking the withdrawal of the directive and compliance notice were
unsuccessful. Undaunted by the DDG’s obdurate stance, AMSA, on 6 January
2016, lodged an objection in respect of the compliance notice and an appeal
against the directive to the Minister. These legal avenues were available to
AMSA under ss 31M and 43 of the NEMA, respectively.

[18] Although AMSA was in the process of decommissioning its existing
BOFSDS it was constrained to impugn the compliance notice because it
feared that leaving it unchallenged would expose it to criminal prosecution.
In the event, on 5 July 2016, the Minister dismissed the appeal against the
directive and the objection to the compliance notice.

[19] In the course of her written reasons for dismissing the appeal to the
DDG’s directive and objection to the compliance notice, the Minister noted
that the directive and compliance notice sought to be reversed by AMSA came
about as a result of AMSA’s failure to comply with the dictates of NEMA and
the impact of the environmental degradation caused by the activities
conducted by AMSA at its Newcastle operations. After setting out the factual
context and observing that AMSA had failed to effectively address the
concerns raised by the DDG, she concluded that the appeal against the DDG’s
directive had to fail. With respect to the compliance notice, the Minister
considered AMSA’s contentions that ‘current arisings’ and ‘reclaimed BOF
slag’ were not waste because at no stage were these by-products rejected,
abandoned or unwanted, and therefore did not constitute waste as defined in
NEM:WA, as against the case advanced by the DDG. The case of the DDG
was that because AMSA no longer required the BOF slag, this meant that it

was unwanted, rejected and abandoned as it was ‘no longer wanted, used or
needed’, hence its disposal to third parties. And, in addition, the fact that
AMSA currently held a WML in respect of its new slag facilities, following
the issuing of a decommissioning licence in respect of its pre-existing disposal
site, was tantamount to an acknowledgment that slag constituted ‘waste’ as
defined in NEM:WA. Consequently, AMSA required WMLs for its activities
as did the third parties to whom it sold its slag. In the event, the objection
relating to the compliance notice was similarly dismissed.

[20] Dissatisfied with the Minister’s decision, AMSA instituted legal
proceedings in the High Court for various orders against the appellants: (a)
reviewing and setting aside her decision to dismiss the appeal in terms of
s 43(8) of NEMA against the directive of the DDG; (b) reviewing and setting
aside her decision to dismiss the objection lodged in terms of s 31M of NEMA
against the compliance notice issued by the DDG under s 31L of NEMA; (c)
reviewing and setting aside the directive and compliance notice; and (d)
seeking declaratory orders in relation to the BOF slag,7 more particularly that
its disposal, reclamation and sale of BOF slag to third parties did not fall foul
of NEMA and NEM:WA. The Minister and the DDG both deposed to
affidavits opposing the relief claimed by AMSA. Their versions are
substantially to the same effect. In essence, they asserted that AMSA, having
been issued with both a decommissioning licence and a WML, was

7 The relevant declaration orders sought are encapsulated in paragraphs 5, 6, 7 and 8 of AMSA’s notice of
motion and read:
‘5 Declaring that the existing Basic Oxygen Furnace (“BOF”) Slag disposal site, which the Applicant has
operated since the late 1970’s, did not require a disposal waste management licence in terms of the
National Environmental Management: Waste Act 59 of 2008 (“NEM:WA”) for its lawful operation;
6 Declaring that the reclamation, crushing and screening of the BOF Slag at the Newcastle Operations of
the Applicant for purposes of sale to downstream users, constitutes “recycling” in terms of the NEM:WA
and the BOF slag, once crushed and screened, no longer constitutes “waste” as defined in the NEM:WA;
7 Declaring that the reclamation, crushing and screening activities at the Newcastle Operations of the
Applicant do not currently require a waste management licence in terms of the NEM:WA.’

consequently obliged to comply with the conditions attaching to those
licences and relevant statutory prescripts.

The High Court
[21] In its judgment, the High Court concluded that the decisions of both the
Minister and the DDG were ‘materially flawed or influenced by an error of
law or fact’ and that on this ground the review should therefore succeed.8 With
respect to the WMLs, the High Court agreed with the submission advanced
by counsel for AMSA that AMSA did not require a WML in respect of its old
BOFSDS, which had been in existence prior to the commencement of the
ECA and, later, the NEM:WA. It found that if the Department sought to bring
AMSA within the purview of the NEM:WA, the Minister ought to have
invoked her statutory powers in terms of s 80(4)9 of NEM:WA – which
repealed parts of the ECA – and regulation 7(1)10 which is to the same effect.
And this, she failed to do.

[22] In the result, the High Court upheld AMSA’s review application and
granted orders11 substantially in the terms sought in AMSA’s notice of

8 Arcelormittal South Africa Limited v Minister of Environmental Affairs and Another [2018] ZAGPPHC
577; 2018 JDR 0957 (GP) para 53.
9 Section 80, which is headed ‘Repeal and amendment of laws, and savings’, provides in subsection (4) that:
‘A person operating a waste disposal facility that was established before the coming into effect of the
Environment Conservation Act and that is operational on the date of the coming into effect of this Act may
continue to operate the facility until such time as the Minister, by notice in the Gazette, calls upon that person
to apply for a waste management licence.’
10 Regulation 7(1), which is to the same effect, reads:
‘A person who lawfully conducts a waste management activity listed in this Schedule on the date of the
coming into effect of this Notice may continue with the waste management activity until such time that the
Minister by notice in a Gazette calls upon such a person to apply for a waste management licence.’
For the regulations, see GN R 921 in GG 37083 of 29-11-2013.
11 The order granted by the High Court reads:
‘1.  The first respondent’s (“Minister”) decision dated 5 July 2016, dismissing the applicant’s (“AMSA”)
appeal lodged on 6 January 2016 in terms of section 43(8) of the National Environmental Management Act
107 of 1998 (“NEMA”) against the directive issued by the second respondent against the applicant in terms
of section 28(4) of the NEMA dated 7 December 2015, is reviewed and set aside;
2.  The Minister’s decision dated 5 July 2016, dismissing AMSA’s objection lodged on 6 January 2016 in
terms of section 31M of the NEMA against the compliance notice issued by the DDG against the applicant
in terms of section 31L of the NEMA dated 7 December 2015 (“compliance notice”) is reviewed and set
aside;

motion. However, the High Court, through what appears to be inadvertence,
omitted to grant an order reviewing and setting aside the DDG’s directive and
compliance notice to which the appeal and objection to the Minister related.
This was notwithstanding the fact that AMSA had explicitly sought such relief
in its notice of motion. In the ordinary course, this would have meant that the
directive and compliance notice as issued by the DDG would remain of force
and effect.12 However, during the hearing before us, counsel for the parties
were agreed that the High Court’s omission was the type of patent omission
contemplated in rule 42(1)(b)13 of the Uniform Rules of Court. Indeed, it is
manifest from the tenor of its judgment that the High Court was minded to
review and set aside the compliance notice and directive. Accordingly, to the
extent necessary, this palpable omission falls to be rectified. Thus, the
proposed correction will be reflected in the order to be issued by this Court.

The statutory framework
[23] It is apposite at this juncture to set out the statutory provisions germane
to the dispute between the antagonists. The ECA, whose main objective was
to provide for the effective protection and controlled utilization of the
environment, came into operation on 9 June 1989. Section 21(1) of the ECA
authorised the Minister, by notice in the Government Gazette, to identify

3.  A declaratory order that the existing Basic Oxygen Furnace (“BOF”) slag disposal site which the applicant
operated since the late 1970s, did not require a disposal waste management licence in terms of the National
Environmental Management Waste Act 59 of 2008 (“NEM:WA”) for it lawful operation;
4.  The respondents to pay the costs of this application, including the costs of two counsel, jointly and
severally, the one paying the other to be absolved.’
12 MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd t/a Eye & Lazer Institute
[2014] ZACC 6; 2014 (3) SA 481 (CC) paras 105-106. See also Wings Park Port Elizabeth (Pty) Ltd v MEC,
Environmental Affairs, Eastern Cape and Others 2019 (2) SA 606 (ECG) para 34. And compare Sewpersadh
v The Minister of Finance and Another [2019] ZASCA 117; [2019] 4 All SA 668 (SCA) para 20.
13 Rule 42(1)(b) in material parts reads:
‘(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any
party affected, rescind or vary:
…
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent
of such ambiguity, error or omission;
…’

activities which in his or her opinion may have a substantial detrimental effect
on the environment. Subsection (2), in turn, lists the possible categories of
activities contemplated under subsection (1). These include industrial
processes and chemical treatment.14

[24] Section 22(1) of the ECA prohibits any person (which includes juristic
persons) from undertaking an activity identified in terms of s 21(1) except by
virtue of a written authorisation issued by the Minister or a competent
authority or local authority or officer, as designated by the Minister’s notice
in the Gazette. AMSA accepts that had it not been for the fact that its
Newcastle plant had been operational since the 1970s, its activities there
would have required authorisation under section 22(1).

[25] Section 28A empowers the Minister to exempt any person, local
authority or government institution from the provisions of any regulation,
notice or directive which was promulgated or issued in terms of the ECA.
And, on the other hand, s 29(4) provides that any person who contravened a
provision of, amongst others, s 22(1) or failed to comply with a condition of
a permit, permission, authorisation or directive issued or granted under this
section ‘shall be guilty of an offence and liable on conviction to a fine not
exceeding R5 million or to imprisonment for a period not exceeding five years
and in the case of second or subsequent conviction, to a fine not exceeding
R10 million or to imprisonment for a period not exceeding 10 years or in both
instances to both such fine and such imprisonment, and in addition to a fine
not exceeding three times the commercial value of any thing in respect of
which the offence was committed.’

14 Section 21(2)(f) and (j), respectively.

[26] In deciding whether to grant or refuse authorisation in terms of s 22(1)
of the ECA, the Minister or competent authority, or local authority or officer
was required to have regard to the NEMA, which came into operation on
29 January 1999. One of the stated purposes of the NEMA, in the context of
environmental governance, is to establish principles for decision-making on
matters affecting the environment and the enforcement of environmental
management laws. Consonant with the dictates and spirit of s 24 of the
Constitution, two of those principles impose a duty on environmental
authorities to ensure that ‘pollution and degradation of the environment are
avoided, or, where they cannot be altogether avoided, are minimised and
remedied’;15 and 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’.16 I have put the words ‘re-used’ and
‘recycled’ in inverted commas for reasons that will become more apparent
later.

The issues
[27] The issues raised in this appeal are:
(i) Did the Deputy Director-General: Legal, Authorisations, Compliance and
Enforcement act within the confines of his statutory powers in issuing his
directive and compliance notice?
(ii) Was the Minister correct in dismissing AMSA’s appeal against the DDG’s
directive and objection to the DDG’s compliance notice?
(iii) Was AMSA subject to the prescripts of the ECA, the NEMA and the
NEM:WA, having regard to the fact that AMSA commenced with its
Newcastle operations long before the enactment of these Acts?

15 Section 2(4)(ii).
16 Section 2(4)(iv).

(iv) Was AMSA required to obtain WMLs under the NEM:WA for its
activities in respect of its old BOF slag disposal site undertaken since the
1970s before the ECA, the NEMA and the NEM:WA were enacted?

[28] Before delving into the issues encapsulated in the preceding paragraph
it is necessary to make a preliminary observation. It is this. In the High Court
there was debate as to whether s 2017 of the ECA applied with retrospective
effect. Section 80(1) of the NEM:WA repealed, amongst others, s 20 of the
ECA. Section 80(4) of the NEM:WA, in turn, provides:
‘A person operating a waste disposal facility that was established before the coming into
effect of the Environment Conservation Act and that is operational on the date of the
coming into effect of this Act may continue to operate the facility until such time as the
Minister, by notice in the Gazette, calls upon that person to apply for a waste management
licence.’

[29] AMSA contended that s 20 of the ECA did not apply with retrospective
effect. For their part, the appellants contended for the opposite. However,
before us, counsel for the appellants changed tack and accepted that s 20 did
not apply retrospectively. There is, of course, a legal presumption that new
legislation is not intended to be retroactive.18 Therefore, the general rule is
that a statute is, as far as possible, to be interpreted as regulating occurrences
that take place after its enactment. However, in view of the fact that this issue
is no longer in contention between the parties, nothing more need be said on
this score.

17 Section 20(1) of the ECA read:
‘No person shall establish, provide or operate any disposal site without a permit issued by the Minister of
Water Affairs and except subject to the conditions contained in such permit.’
18 S v Mhlungu and Others 1995 (3) SA 867 (CC) para 65.

[30] With the aspect relating to retrospectivity of s 20 of the ECA out of the
way, it is now time to turn immediate focus to the crux of the dispute that
precipitated this litigation. It will be recalled that in invoking s 31L(1) of
NEMA on 7 December 2015, the DDG believed that AMSA had not complied
with the laws relating to the protection of the environment. Section 31L(1)
provides:
‘An environmental management inspector, within his or her mandate in terms of section
31D, may issue a compliance notice in the prescribed form and following a prescribed
procedure if there are reasonable grounds for believing that a person has not complied—
(a) with a provision of the law for which that inspector has been designated in terms of
section 31D; or
(b) with a term or condition of a permit, authorisation or other instrument issued in terms
of such law.’
As already mentioned, the compliance notice issued by the DDG required
AMSA, within 24 hours of the issuance of the notice, to cease with the
disposal of waste into its BOFSDS until such time that the Department agreed
in writing that AMSA could recommence with its activities. On the other
hand, the directive (as amended subsequently) directed AMSA to immediately
desist from selling BOF slag to third parties unless those third parties were in
possession of WMLs or save where the Department agreed in writing to allow
AMSA to supply or sell BOF slag to third parties subject to whatever
conditions that the Department may see fit to impose for such sale or supply.

[31] The invocation by the DDG of ss 28(4) and 31L(1) of the NEMA
necessitates a close look at what is meant by ‘waste’ as defined in the
NEM:WA. This entails an interpretative exercise. Section 1 of the NEM:WA
defines ‘waste’ as:
‘(a)
any substance, material or object, that is unwanted, rejected, abandoned, discarded
or disposed of, or that is intended or required to be discarded or disposed of, by the
holder of that substance, material or object, whether or not such substance, material

or object can be re-used, recycled or recovered and includes all wastes as defined
in Schedule 3 to this Act; or
(b)
any other substance, material or object that is not included in Schedule 3 that may
be defined as a waste by the Minister by notice in the Gazette,
but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases to be a
waste—
(i)
once an application for its re-use, recycling or recovery has been approved
or, after such approval, once it is, or has been re-used, recycled or recovered;
(ii)
where approval is not required, once a waste is, or has been re-used,
recycled or recovered;
(iii)
where the Minister has, in terms of section 74, exempted any waste or a
portion of waste generated by a particular process from the definition of
waste; or
(iv)
where the Minister has, in the prescribed manner, excluded any waste
stream or a portion of a waste stream from the definition of waste.’
Section 1 further defines ‘recycle’ to mean:
‘[A] process where waste is reclaimed for further use, which process involves the
separation of waste from a waste stream for further use and the processing of that separated
material as a product or raw material’.

[32] The principles of statutory interpretation are by now well-settled. In
Natal Joint Municipal Pension Fund v Endumeni Municipality,19 this Court
authoritatively restated the proper approach to statutory interpretation. This
Court explained that statutory interpretation is the objective process of
attributing meaning to words used in legislation. This process, it emphasised,
entails a simultaneous consideration of ‘the language used in the light of the
ordinary rules of grammar and syntax; the context in which the provision
appears; [and] the apparent purpose to which it is directed’.20

19 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA).
20 Para 18.

[33] What the Constitutional Court said in Cool Ideas 1186 CC v Hubbard
and Another21 in the context of statutory interpretation is particularly apposite.
The Constitutional Court said (para 28):
‘A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity. There
are three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preserve their
constitutional validity. This proviso to the general principle is closely related to the
purposive approach referred to in (a).’22
Against this backdrop, I proceed to a consideration of the contentions of the
antagonists.

[34] Before I deal with what I see as the essential dispute between the
parties, there is a preliminary issue that bears mentioning. This issue has to do
with two critical events that occurred during 2011 which appear to have led
the Department astray. First, on 28 July 2011, the Department issued a WML
to AMSA under the NEM:WA at the latter’s instance for the construction and
operation of a new BOFSDS at the Newcastle operations. The WML was
granted to enable AMSA to: (a) dispose of any quantities of hazardous waste
to land; and (b) for the construction of facilities listed in category B of the
schedule to the licence. Second, on 29 September 2011 a decommissioning
WML for AMSA’s existing BOFSDS was issued. On 12 September 2016 this
licence was revised to authorise AMSA to reclaim BOF slag from its existing
BOFSDS with a view to decommissioning and rehabilitating the existing
BOFSDS.

21 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC).
22 (Citations omitted.)

[35] The appellants therefore contend that, pursuant to the issuance of
WMLs (decommissioning and construction) to AMSA during 2011, the latter
was obliged, after 7 January 2016,23 to dispose of its BOF slag into the new
BOFSDS. This necessarily entailed, so the argument proceeded, that AMSA
was thenceforth impelled to comply with the conditions of the two licences
issued to it and ultimately the prescripts of the NEMA and the NEM:WA.

[36] As already indicated, the appellants accept that AMSA’s BOFSDS at
its Newcastle operations – that has been in existence since the 1970s – did not
require a permit under s 20 of the ECA. They also accept that the only
statutory avenue that was open to the Minister, if she wished to bring AMSA
within the parameters of the NEM:WA (which repealed s 20 of the ECA), was
to invoke her powers under s 80(4) of that Act and call upon AMSA, by notice
in the Gazette, to apply for a WML. Nevertheless, the appellants assert that
the fact that the Minister did not invoke this statutory power is not the end of
the matter. Their primary submission was that because AMSA applied for and
was issued with a decommissioning licence in respect of its existing BOFSDS,
and a construction licence to build a new BOFSDS, it thereby subjected itself
to the dictates of the NEMA and the NEM:WA. They also argue that,
inasmuch as AMSA had acknowledged that it sold BOF slag to third parties,
it was consequently dealing with waste and therefore required a WML to
lawfully do so as required by s 20 of the NEM:WA.24

23 7 January 2016 is the date on which the Department granted AMSA permission to use the newly
constructed BOFSDS.
24 Section 20, which is headed ‘Consequences of listing waste management activities’, replicates the repealed
s 20 of the ECA and reads:
‘No person may commence, undertake or conduct a waste management activity, except in accordance with—
(a) the requirements or standards determined in s 19(3) for that activity; or
(b) a waste management license issued in respect of that activity, if a licence is required.’

[37] In elaboration, it was contended that ‘waste’ as defined in the
NEM:WA draws no distinction between ‘current arisings’ and ‘reclaimed
slag’. According to AMSA, ‘current arisings’ is the slag that is immediately
sold to third parties without first having been temporarily deposited into a
BOFSDS. As to ‘reclaimed slag’ it was argued that before its reclamation
BOF slag is disposed of into a BOFSDS to be reclaimed at a later date.
Therefore, so went the argument, BOF slag remains waste regardless of
whether it is immediately sold to third parties or temporarily deposited into a
BOFSDS before its reclamation for sale to third parties.

[38] For its part, AMSA argued that current arisings is not waste for at least
two reasons. First, it is not ‘a substance, material or object that is unwanted,
rejected, abandoned or discarded’ within the meaning of ‘waste’ in s 1 of the
NEM:WA because it is never deposited nor stored in a BOFSDS. And second,
because it has commercial value, hence it is sold to third parties in the
agricultural and road construction sectors. As to reclaimed slag, AMSA
submitted that once BOF slag is recovered from the BOFSDS – where it is
temporarily deposited because it could not be sold immediately – and
recycled, it ceases to be waste if it meets any one of the requirements of
s 1(b)(i) to (iv) of NEM:WA. Consequently, AMSA contended that it did not
require a WML in order to dispose of recycled BOF slag. Nor were the third
parties to whom the BOF slag was sold required to have waste disposal
licences, since what they acquired from AMSA was not waste within the
purview of s 1 of the NEM:WA.

[39] At this juncture it would be of assistance, I think, to explain the meaning
of two terms employed by AMSA insofar as its BOF slag is concerned. These
are: ‘current arisings’ and ‘reclaimed BOF slag’. Whilst the NEM:WA speaks
only of waste and says nothing about current arisings and reclaimed BOF slag,

as correctly submitted by counsel for the appellants, it would appear that
AMSA has for its operational reasons coined the terms ‘current arisings’, on
the one hand, and ‘reclaimed BOF slag’ on the other. According to AMSA,
‘current arisings’ represents a slag stream that is temporarily stockpiled before
it is crushed and screened to a client’s specification and dispatched to
customers for further downstream use. On the other hand, ‘reclaimed BOF
slag’ is slag that was temporarily deposited into a BOFSDS and later
reclaimed by separating the BOF slag from the dump. Thereafter it is similarly
crushed and screened to clients’ specification and dispatched to customers for
further downstream use.

[40] It will be observed that the essential difference between the two is that
the former is dispatched to customers without the need first to deposit it in the
BOFSDS. On the other hand, the reclaimed BOF slag is first deposited into
the BOFSDS and, once reclaimed therefrom, it is recycled, processed and
thereafter dispatched to customers for use. Accordingly, these terms are
employed by AMSA to distinguish between BOF slag that is sold immediately
to third parties once it has been prepared and packaged in accordance with the
specifications of the third parties to whom it is sold and that BOF slag that is
not immediately sold but retained in the BOFSDS for reclamation and
recycling at a later stage as and when demand therefor from third parties
arises. Thus, there is nothing magical about these terms.

[41] Reverting to the crux of the appeal, in my view, the contentions
advanced on behalf of AMSA have considerable force. The relevant definition
of ‘waste’ has already been quoted above.25 Far from being obscure, the
definition is clear and unequivocal. On a fair reading thereof, it becomes

25 See para 31 above.

readily apparent that any substance, material or object that is not ‘unwanted,
rejected, abandoned, discarded or disposed of’ does not fall within the ambit
of the definition. Similarly, any substance, material or object that has been
recycled or recovered, in this instance from the BOFSDS, ceases to be waste
once recycled or re-used. Consequently, AMSA’s current arisings and
reclaimed BOF slag self-evidently fall outside the terms of the definition of
waste.

[42] Section 1 of the NEM:WA defines ‘recycle’ as:
‘[A] process where waste is reclaimed for further use, which process involves the
separation of waste from a waste stream for further use and the processing of that separated
material as a product or raw material’.
The NEMA, it will be recalled, seeks to protect the right of everyone to an
environment that is not harmful and protects the environment from
degradation. To this end it provides in s 2(4)(iv) that sustainable development
must be balanced against the need to avoid waste or where waste cannot be
altogether avoided or minimised, it must be recycled. Thus, in recycling its
waste, ie BOF slag in the form of what AMSA describes as reclaimed BOF
slag, AMSA was in fact promoting one of the principal objects of the NEMA,
that is, to protect the environment from degradation.

[43] Accordingly, the argument advanced on behalf of the appellants is
unsound for the following reasons. In the first place, as the appellants have
been constrained to accept, AMSA’s Newcastle operations from the 1970s
were not subject to s 20 of the ECA. Second, the decommissioning licence
granted to AMSA explicitly provided that AMSA was authorised to
decommission its existing BOFSDS and rehabilitate it. In order to give effect
to this requirement, it was necessary for AMSA to reclaim part of the material
deposited in the BOFSDS, ie separate BOF slag from the dump in its

BOFSDS, and recycle it for sale to third parties in order to seal and rehabilitate
the existing BOFSDS. It was with this in mind that AMSA was, on 12
September 2016, through the amendment of its decommissioning licence
explicitly authorised to reclaim BOF slag from its existing BOFSDS in order
to give effect to the terms of the licence.

[44] Counsel for the appellants, whilst acknowledging that the clear purpose
of s 80(4) of the NEM:WA was to ‘legitimise a waste disposal site that [was]
in operation’ before the coming into effect of s 20 of the ECA (which s 80(1)
repealed), nevertheless submitted that s 80(4) was not open to a construction
that makes it possible for someone ‘to operate a facility, whilst the [same]
person simultaneously holds a WML for a different waste management
activity’. It is not in dispute that AMSA continued to operate its existing
BOFSDS whilst at the same time holding a WML for a new site still to be
constructed.

[45] I consider this submission to be an over-simplification of the true state
of affairs. It is completely answered by the countervailing argument advanced
by counsel for AMSA. In essence, AMSA’s argument boils down to the
following. First, the decommissioning and construction licences had no
bearing on AMSA’s existing rights and entitlements as explicitly recognised
by s 80(4) of the NEM:WA. Second, for as long as the new site was still under
construction and AMSA had not been granted permission to use the new
disposal site – which was granted only in January 2016 – it was entitled to
continue using its existing BOFSDS as before. To contend otherwise, as the
appellants sought to do, would have the effect of not only defeating the
purpose of s 80(4) but also abruptly halting AMSA’s operations for the
duration of the construction of the new BOFSDS. This cannot be. To read
s 80(4) in this way would undermine the effectiveness of the NEM:WA.

Moreover, to uphold the interpretation for which counsel for the appellants
contends would run counter to what this Court said was the proper approach
to statutory interpretation in Natal Joint Municipal Pension Fund v Endumeni
Municipality,26 namely that: ‘[a] sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document’.

[46] For the sake of completeness, it bears mentioning that since AMSA’s
existing BOFSDS predates the coming into operation of s 20 of the ECA, the
provisions of s 7427 of the NEM:WA find no application. Section 74 could
have had direct application only if the Minister had invoked her powers under
s 80(4) of the NEM:WA. As already mentioned, it is common cause between
the parties that at no stage did the Minister exercise her powers in terms of
this section. Therefore, the need for AMSA to apply for exemption under s 74
did not arise.

[47] For all the aforegoing reasons therefore I am driven to the conclusion
that all four of the questions posed in paragraph 27 above must be answered
in the negative. This conclusion ineluctably means that the appeal in relation
to this aspect must fail.

[48] It remains to consider the appellants’ final argument in relation to the
declaratory order granted by the High Court. In essence, their argument on

26 Natal Joint Municipal Pension Fund op cit fn 16 para 18.
27 Section 74,headed ‘Applications for exemption’, reads as follows:
‘(1) Any person may apply in writing for exemption from the application of a provision of this Act to the
Minister or, where the MEC is responsible for administering the provision of the Act from which the person
or organ of state requires exemption, to the MEC.
(2) An application in terms of subsection (1) must be accompanied by—
(a) an explanation of the reasons for the application; and
(b) any applicable supporting documents.’

this score went like this. The High Court was criticised for granting
declaratory relief – albeit far more limited than what AMSA had sought in its
notice of motion – to AMSA. It was argued that that part of the order was
unwarranted, having regard to the fact that AMSA had since been granted
decommissioning and construction licences. It was contended that with the
old site having been rehabilitated and sealed as required by the
decommissioning licence and the new waste disposal site having been
commissioned, the declaratory order sought and granted by the High Court
had become moot by the time that the review was heard. Consequently, argued
counsel, it should have been refused.

[49] In elaboration, counsel submitted in their heads of argument as follows:
‘From 7 January 2016, AMSA on its own version had to dispose BOF slag
(waste) into the newly constructed BOFSDS. In this regard, the compliance
notice clearly relates to historical facts, which will have no legal effect or
consequence if reviewed and set aside. Moreover, relief must be effective’. In
support of these submissions counsel relied on Geldenhuys and Neethling v
Beuthin28 and Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO) and Others.29

[50] The short answer to this submission lies in the counter argument
advanced on behalf of AMSA. Briefly stated, it is that the grant of declaratory
relief by the High Court was fully justified and, in any event, is not susceptible
to interference on appeal for at least two reasons. First, the alleged
transgressions identified by the DDG in his compliance notice exposed
AMSA to criminal prosecution under the relevant provisions of the

28 Geldenhuys and Neethling v Beuthin 1918 AD 426 at 441.
29 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders
(NICRO) and Others 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) para 74.

NEM:WA. If established, AMSA would be liable to heavy criminal sanctions
with far-reaching consequences. Second, the grant of declaratory relief entails
the exercise of a narrow discretion. Thus, the grounds upon which the exercise
of such a discretion can be interfered with on appeal are circumscribed. In
Gaffoor and Another NNO v Vangates Investments (Pty) Ltd and Others,30 the
distinction between a narrow discretion and a broad one was, with reference
to previous decisions, explained in these terms (para 39):
‘[T]he essence of “a discretion in the narrow or strict sense” involves a choice between two
or more different, but equally permissible, alternatives, while “a discretion in the broad
sense” means no more than a power to have regard to a number of disparate and
incommensurable features in arriving at a conclusion. It is only when the court exercises a
discretion in the narrow or strict sense that an appeal court's powers of interference are said
to be limited. With regard to the exercise of a discretion in the broad sense, there is no
reason why the powers of an appeal court should be so restricted. Since these matters can
be determined equally appropriately by an appeal court, it may substitute its own discretion
for that of the trial court if it differs from such court on the merits, and may make the order
which it deems just’.31

[51] In Giddey NO v JC Barnard and Partners,32 the Constitutional Court
aptly explained this principle in the following terms (para 19):
‘the ordinary approach on appeal to the exercise of the discretion in the strict sense is that
the appellate court will not consider whether the decision reached by the court at first
instance was correct, but will only interfere in limited circumstances; for example, if it is
shown that the decision has not been exercised judicially or has been exercised based on a
wrong appreciation of the facts or wrong principle of law.’

30 Gaffoor and Another NNO v Vangates Investments (Pty) Ltd and Others [2012] ZASCA 52; 2012 (4) SA
281 (SCA).
31 (Citations omitted.) See further, in this regard, Competition Commission v Hosken Consolidated
Investments Ltd and Another [2019] ZACC 2; 2019 (3) SA 1 (CC) paras 74-88; Cordiant Trading CC v
Daimler Chrysler Financial Sevices (Pty) Ltd [2005] ZASCA 50; 2005 (6) SA 205 (SCA) paras 17-18; and
Rumdel Construction (Cape) (Pty) Ltd v South African National Roads Agency SOC Ltd [2016] ZASCA 23;
2016 JDR 0512 (SCA) paras 15-16
32 In Giddey NO v JC Barnard and Partners [2006] ZACC 13; 2007 (2) BCLR 125 (CC); 2007 (5) SA 525
(CC).

And the judgment continued (para 22):
‘It would not be appropriate for an appellate court to interfere with that decision as long as
it is judicially made, on the basis of the correct facts and legal principles. If the court takes
into account irrelevant considerations or bases the exercise of its discretion on wrong legal
principles, its judgment may be overturned on appeal. Beyond that, however, the decision
of the court of first instance will be unassailable.’33

[52] For all the aforegoing reasons therefore the conclusion reached by the
High Court cannot be faulted.

[53] In the result the following order is made:
The appeal is dismissed with costs, including the costs of two counsel.
The order of the High Court is supplemented to the extent reflected
below:
‘The directive and compliance notice issued by the Deputy Director-General:
Legal, Authorisation, Compliance and Enforcement on 7 December 2015 are
reviewed and set aside.’

________________________
X M PETSE
DEPUTY PRESIDENT

33 (See further, in this regard, Competition Commission v Hosken Consolidated Investments Ltd and Another
2019 (3)SA 1 (CC) paras 74-88; Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005
(6)SA 205 (SCA) paras 17-18;and Rumdel Construction (Cape) (Pty) Ltd v South African National Roads
Agency SOC Ltd 2016 JDR 0512 (SCA) paras 15-16.)

Appearances

For appellants:
I Ellis SC (with her K Kollapen)
Instructed by:
State Attorney, Pretoria
State Attorney, Bloemfontein

For respondent:
N H Maenetje SC (with him B L Makola)
Instructed by:
MacRobert Incorporated, Pretoria
Phatsoane Henney Attorneys, Bloemfontein.