THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE

Case No: 145/13

In the matter between:

RETAIL MOTOR INDUSTRY ORGANISATION
First Appellant

CIRCUIT FITMENT CC
Second Appellant

and

MINISTER OF WATER AND ENVIRONMENTAL
AFFAIRS
First Respondent

RECYCLING & ECONOMIC DEVELOPMENT
INITIATIVE OF SOUTH AFRICA NPC
Second Respondent

Neutral citation:
Retail Motor Industry Organisation v Minister of Water &
Environmental Affairs (145/13) [2013] ZASCA 70 (23 May
2013)

Coram:
Mpati P, Nugent, Tshiqi JJA & Plasket and Saldulker AJJA

Heard:
08 May 2013

Delivered:
23 May 2013

Summary:
Administrative
law
–
functus
officio
principle
–
integrated
industry
waste tyre
management
plan
subordinate legislation – functus officio principle does
not apply – not necessary for new public participation
process when plan that had been subjected to it
republished – who may draft plan – not restricted to tyre
producers –plan may only regulate management of
waste pneumatic tyres – references to solid tyres
severable.

ORDER
On appeal from: North Gauteng High Court, Pretoria (Bam AJ sitting as
court of first instance)
1 Save to the extent set out in paragraph 2, the appeal is dismissed with
costs, including the costs of two counsel.
2 The order of the court below is amended to read:
‘(a) Save to the extent set out in paragraph (b), the application is dismissed
with costs, including the costs of two counsel.
(b) Every reference to solid tyres in the second respondent’s Integrated
Industry Waste Tyre Management Plan, approved by the first respondent and
published in Government Notice 988 in Government Gazette 35927 of 30
November 2012, is set aside.

JUDGMENT

PLASKET AJA (MPATI P, NUGENT and TSHIQI JJA and SALDULKER
AJA concurring)
[1] This appeal concerns the regulatory framework for the environmentally
compliant management of tyres that are no longer fit for their purpose and the
powers and functions of the Minister of Water and Environmental Affairs, the
first respondent (the Minister), in relation to integrated industry waste tyre
management plans. (Although referred to in the papers as IIWTMPs, I shall
refer to them simply as plans.) Such plans are of importance from the
perspective of the fundamental right, enjoyed by everyone, ‘to an environment
that is not harmful to their health or well-being’ entrenched in s 24(a) of the
Constitution and the Minister’s obligations in terms of s 7(2) of the Constitution
to ‘respect, protect, promote and fulfil’ this and the other rights contained in s
24.

[2] The application that is the subject of this appeal stems from earlier
proceedings. I shall deal more fully with those proceedings later in this
judgment but a brief explanation of the background is necessary at this stage.

[3] The National Environmental Management: Waste Act 59 of 2008 (the
Waste Act) empowers the Minister to approve and publish plans, drafted and
submitted to her by private persons or bodies, to manage waste in any
industry that generates waste. These plans impose obligations on participants
in those industries. In this case the Minister approved and published a plan
drafted by the Recycling and Economic Development Initiative of South Africa
(REDISA), the second respondent. The appellants, the Retail Motor Industry
Organisation (RMI) and Circuit Fitment CC, challenged the validity of the
approval of the plan in an application for judicial review. Pending the outcome
of the review, they sought an interim interdict preventing the implementation
of the plan. The application for interim relief came before Tuchten J who found
that, prima facie, one item of the plan, which he found to be material, was
invalid. On that basis, he granted the interim interdict.

[4] The Minister then withdrew the plan and published the same plan
minus the offending item. The appellants contend that she was not entitled to
withdraw the plan and, because that plan remained in existence until set aside
in the review proceedings, she was not entitled to publish the second plan.
What is advanced by the appellants is thus the curious contention that,
although they allege that the initial plan is invalid, it must remain extant until
such time as it is set aside by them, and that the Minister may not short-circuit
the process by simply withdrawing an invalid plan and substituting it with a
valid plan. Meanwhile, of course, the invalid plan will not be capable of
implementation in view of the interim interdict and the process of finalising
REDISA’s plan will grind to a halt. This is clearly the objective that is sought to
be achieved.

[5] In the urgent application with which this appeal is concerned, RMI and
Circuit Fitment CC applied to the North Gauteng High Court, Pretoria for
orders against the Minister and REDISA for (a) a declarator that the Minister’s
withdrawal of REDISA’s plan on 30 November 2012 was a nullity; (b) that her
approval of its amended plan on the same day be reviewed and set aside;
and (c) that both the Minister and REDISA be interdicted from implementing

the amended plan. Bam AJ dismissed the application with costs but later
granted the appellants leave to appeal to this court.

[6] The central issues in this appeal are: (a) whether, when the Minister
withdrew REDISA’s plan, she had lawful authority to do so or was functus
officio; (b) if the Minister was able to withdraw the first plan, whether the
procedural requirements for the approval of the plan that replaced it had been
complied with; (c) whether the plan was invalid because it did not contain
certain information; (d) whether, because REDISA is not a tyre producer, the
Minister could not lawfully approve its plan; and (e) whether the plan may
regulate the disposal of solid tyres as well as pneumatic tyres (and the
consequences that follow if it may not). Before dealing with these issues, it is
necessary to say something of the legislative framework and the facts.

The legislative framework

[7] When the Waste Act came into operation on 1 July 2009 it repealed
much of the Environment Conservation Act 73 of 1989 but saved regulations
made in terms of that Act,1 including the Waste Tyre Regulations2. The Waste
Act and the Waste Tyre Regulations are the principal legislative instruments
that are of application in this appeal.

[8] Section 28 of the Waste Act allows the Minister to initiate the process
of drafting plans. Section 28(1) provides:
‘Where any activity results in the generation of waste that affects more than one
province or where such activity is conducted in more than one province, the Minister
may by written notice require a person, or by notice in the Gazette require a category
of persons or an industry, that generates waste to prepare and submit an industry
waste management plan to the Minister for approval.’
Section 28(7)(a) provides, however, that a ‘person, category of persons or
industry contemplated in subsection (1) . . . may elect to prepare an industry

1 Waste Act, s 80(2).
2 Government Notice 149, Government Gazette 31901 of 13 February 2009.

waste management plan for approval . . . without being required to do so by
the Minister . . .’.

[9] Section 30 deals with the contents of plans. When the Minister acts in
terms of s 28(1), she must also specify what information must be included in
any plan that is drafted and submitted to her.3 That information may include
such matter as the amount of waste that is generated, the measures to be
taken to prevent pollution or ecological degradation and ‘any other matter that
may be necessary to give effect to the objects of this Act’.4

[10] Section 32 deals with the submission and approval of plans. It
provides, to the extent relevant to this matter:
‘(1) The Minister, acting in terms of section 28(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;
(b)
require additional information to be furnished and a revised plan to be
submitted within timeframes specified by the Minister . . . for approval;
(c)
require amendments to be made to the plan within timeframes
specified by the Minister . . .; or
(d)
reject the plan with reasons if it does not comply with the requirements
of a notice in terms of section 28(1) . . . or if a consultation process in
accordance with section 31 was not followed.
(2) . . .
(3) An industry waste management plan that has been rejected in terms of
subsection (1)(d) may be amended and resubmitted to the Minister . . .
(4) On receipt of any information or amendments requested in terms of subsection
(1)(b) or (c), or any amended industry waste management plan resubmitted in terms
of subsection (2) for the first time, the Minister . . . must reconsider the plan.
(5) An approval in terms of subsection (1)(a) must at least specify the period for
which the approval is issued, which period may be extended by the Minister . . .
(6) Notice must be given in the relevant Gazette of any industry waste management
plan that has been prepared in terms of section 28 and that has been approved by
the Minister . . .

3 Waste Act, s 30(1).
4 Waste Act, s 30(2).

(7) . . . ’

[11] Prior to approving a plan, the Minister is required by s 72(1) to ‘follow
such consultative process as may be appropriate in the circumstances’. She
is, in particular, obliged to consult with other members of the cabinet whose
portfolios may be affected, MECs in the provinces who may be affected, and
members of the public through a public participation process, which must be
conducted in accordance with s 73.

[12] The Waste Tyre Regulations impose certain obligations on tyre
producers, tyre dealers and tyre stockpile owners.5  Regulation 6(3), for
instance, provides:
‘A tyre producer operating on the date of commencement of these regulations must
either-
(a)
prepare and submit to the Minister, an integrated industry waste tyre
management plan, within 60 days of registering in terms of
subregulation (1) for approval; or
(b)
register with an existing integrated industry waste tyre management
plan approved by the Minister; and
(c)
comply with the integrated industry waste tyre management plan
immediately on receiving the Minister’s approval, or comply within 60
days with an existing integrated industry waste tyre management plan
approved by the Minister.’
It is clear from reg 6(3) that, potentially, more than one plan can regulate
waste tyre management; if a tyre producer does not wish to conduct business
in accordance with an existing plan, it may prepare its own and submit it for
approval.

[13] Part 4 of the regulations deals with the contents of plans and the
process to be followed from the conceptualisation of a plan to its
promulgation. Regulation 9 states that a plan that is later to be submitted to
the Minister must ‘at least’ deal with certain listed issues. It must, for instance,

5 Regulations 6, 7 and 8.

identify the parties to the plan,6 indicate ‘how the waste hierarchy will be given
effect’,7 and so on. In terms of reg 11(1), when the Minister receives a plan,
she: ‘(a) may require additional information to be furnished and a revised plan to be
submitted within a timeframe indicated by the Minister;
(b) must publish the integrated industry waste tyre management plan in the
Government Gazette  for a period of 30 days for comment;
(c) must send comments received to the person responsible for producing the plan
for consideration and incorporation where relevant; and
(d) must, after incorporation of any comments, review the revised integrated industry
waste tyre management plan, approve it with or without conditions, or reject the
integrated industry waste tyre management plan with reasons and with a timeframe
for resubmission.’
In terms of reg 11(4), when the Minister decides to approve a plan, she must
publish a notice to that effect in the Government Gazette.

The facts

[14] In February 2011, REDISA submitted a plan that it had drafted to the
Minister for her approval. In April 2011, the South African Tyre Recycling
Process Corporation NPC (the SATRP) submitted its plan for approval and in
December 2011 RMI did the same.

[15] In November 2011, the REDISA plan was approved and the SATRP
plan was rejected. The RMI plan remained in limbo for some time. In April
2012 detailed comments were made on the RMI plan by the Department and
enquiries were made of RMI.  We were informed from the bar that the RMI
plan was eventually submitted to the Minister two days before the hearing of
this appeal.

[16] On 20 January 2012, SATRP brought an urgent application for an
order suspending the implementation of the REDISA plan. On 26 January

6 Regulation 9(1)(a).
7 Regulation 9(1)(c).

2012, the approval of the REDISA plan was withdrawn.8 Neither SATRP or
RMI objected to the withdrawal. REDISA later submitted another plan.

[17] During April 2012, the Department convened a meeting with role
players in the tyre industry, including RMI and REDISA, to inform them of
progress in relation to the various plans that had been submitted to it and to
‘confirm that the process would be concluded in a fair and reasonable manner
in considering the respective plans that had been submitted’.

[18] By this stage, REDISA’s draft plan had been published in the
Government Gazette for public comment in terms of reg 11(1)(b).9 It is
common cause that a full and complete public participation process, as
envisaged by s 73 of the Waste Act, was conducted thereafter. In July 2012,
REDISA’s plan was approved by the Minister and it was published in the
Government Gazette.10 (I shall refer to this plan as the July plan, it having
been referred to as such by the parties.)

[19] The approval of the July plan led to the urgent application that I have
referred to above being launched by RMI and Circuit Fitment CC against the
Minister and REDISA for an order interdicting the implementation of the plan
pending a review of its approval.11 Tuchten J granted the interim interdict on
the basis that there were prospects of the reviewing court finding that the
approval of the plan was unlawful to the extent that the approved version of
the plan contained an item, item 15.1 (dealing with waste reduction targets),
which he found to have been a material part of the plan and which was not
part of the version that had been published for public comment.12 He
concluded:13
‘If the Minister accepts that the attempt to bring into effect the Redisa Plan as
approved and published on 23 July 2012 was indeed invalid on the ground advanced

8 Government Notice 559, Government Gazette 34974 of 26 January 2012.
9 Government Notice 337, Government Gazette 35147 of 17 April 2012.
10 Government Notice 564, Government Gazette 35534 of 23 July 2012.
11 Retail Motor Organisation & another v Minister of Water and Environmental Affairs &
another NGP 12 November 2012 (case no. 51148/12) unreported.
12 Paras 37, 51.
13 Para 59.

by the applicants which I have found to carry prospects of success, then it may be, to
put it no higher, that the Minister can legitimately withdraw her approval of the Redisa
Plan as approved and published on 23 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 of the Plan under reg 11(1)(d). I emphasise that I come to no
conclusion on the point. The decision is for the Minister to take, not the courts.’

[20] The Minister followed the suggestion made by Tuchten J. On 30
November 2012, she withdrew her approval of the July plan14 and then
approved the plan without item 15.1.15 (This plan is referred to in the papers
as the November plan, and I shall refer to it as such.) It was this process of
withdrawal and approval that led to the application that is the subject matter of
this appeal.

[21] RMI and Circuit Fitment CC argued that the Minister acted unlawfully
when she withdrew the July plan, that she consequently had no power to
approve the November plan and even if she did, its approval was invalid on
various grounds. I turn now to these issues.

The issues

Was the Minister functus officio in relation to the July plan?

[22] The first point that was argued was that the Minister was not able to
withdraw the July plan once she had approved it because she was functus
officio. This argument, it seems to me, strikes something of a disconsonant
note because the Minister, by withdrawing the July plan, gave RMI and Circuit
Fitment precisely what they wanted.

[23] In explaining what the functus officio principle means, Daniel Malan
Pretorius says the following:16

14 Government Notice 987, Government Gazette 35926 of 30 November 2012.
15 Government Notice 988, Government Gazette 35927 of 30 November 2012.
16 Daniel Malan Pretorius ‘The Origins of the Functus Officio Doctrine, with Specific Reference
to its Application in Administrative Law’ (2005) 122 SALJ 832 at 832. See too V G Hiemstra

‘The functus officio doctrine is one of the mechanisms by means of which the law
gives expression to the principle of finality. According to this doctrine, a person who
is vested with adjudicative or decision-making powers may, as a general rule,
exercise those powers only once in relation to the same matter. . . The result is that
once such a decision has been given, it is (subject to any right of appeal to a superior
body or functionary) final and conclusive. Such a decision cannot be revoked or
varied by the decision-maker.’

[24] The functus officio principle is also intended to foster certainty and
fairness in the administrative process. It is not absolute in the sense that it
does not apply to every type of administrative action. Certainty and fairness
have to be balanced against the equally important practical consideration that
requires the re-assessment of decisions from time to time in order to achieve
efficient and effective public administration in the public interest. Lawrence
Baxter deals with these competing factors when he explains the purpose of
the principle:17
‘Indeed, effective daily administration is inconceivable without the continuous
exercise and re-exercise of statutory powers and the reversal of decisions previously
made. On the other hand, where the interests of private individuals are affected we
are entitled to rely upon decisions of public authorities and intolerable uncertainty
would result if these could be reversed at any moment. Thus when an administrative
official has made a decision which bears directly upon an individual’s interests, it is
said that the decision-maker has discharged his office or is functus officio.’

[25] It is not necessary in this judgment to define the exact boundaries of
the functus officio principle, save to say the following: first, the principle
applies only to final decisions;18 secondly, it usually applies where rights or
benefits have been granted – and thus when it would be unfair to deprive a
person of an entitlement that has already vested;19 thirdly, an administrative
decision-maker may vary or revoke even such a decision if the empowering

and H L Gonin Trilingual Legal Dictionary 3 ed (1992) who define functus officio to mean ‘no
longer in office (officiating); having discharged his office’.
17 Lawrence Baxter Administrative Law (1984) at 372 (Baxter). See too Cora Hoexter
Administrative Law in South Africa 2 ed (2012) at 277 (Hoexter).
18 President of the Republic of South Africa & others v South African Rugby Football Union &
others 2000 (1) SA 1 (CC) para 44; Baxter at 375; Hoexter at 278.
19 Baxter at 373-375. See for example Cape Coast Exploration Ltd v Scholtz & another 1933
AD 56 at 65.

legislation authorises him or her to do so (although such a decision would be
subject to procedural fairness having been observed and any other
conditions);20 fourthly, the functus officio principle does not apply to the
amendment or repeal of subordinate legislation.21

[26] The principle does not apply to subordinate legislation for two reasons.
First, in terms of the common law, legislation may be amended by the body
empowered to make it.22 Secondly, the Interpretation Act 33 of 1957 provides
expressly for a deviation from the principle in the case of subordinate
legislation. Section 10(3) states:
‘Where a law confers a power to make rules, regulations or by-laws, the power shall,
unless the contrary intention appears, be construed as including a power exercisable
in like manner and subject to the like consent and conditions (if any) to rescind,
revoke, amend or vary the rules, regulations or by-laws.’

[27] In this instance, the empowering legislation does not authorise the
Minister to revoke an approval of a plan once granted, although reg 12
provides for the revision of plans every five years, or sooner if and when the
need arises for revision. If one considers the contents of the plan, it is clear
that it does not seek to vest rights or benefits in those who subscribe to it.
Indeed, the opposite is true: it imposes obligations on them. So, for instance,
item 4 of the plan requires subscribers to ‘provide to the external accounting
company a monthly declaration of their tyre production (including rejects),
imports and exports’ and to provide ‘annual audit certificates confirming their
declarations of masses of tyres imported and/or manufactured, and permit
spot check audits to be conducted by REDISA’s auditors’; and item 17
requires subscribers to pay a waste tyre management fee.23 This is an
indication that the functus officio principle may not be of application.

20 Baxter at 376-378; Hoexter at 278-279; L A Rose-Innes Judicial Review of Administrative
Tribunals in South Africa (1963) at 99.
21 Baxter at 372 says: ‘One can understand the necessity for rules of general application to be
changed from time to time, as changing policies and circumstances require.’ See too Hoexter
at 276.
22 Hoexter at 276.
23 See too items 8, 9, 12, 13, 24 and 26 which all impose obligations of one form or another
on subscribers and other persons.

[28] I turn now to consider the nature of the approved plan, it having been
argued on behalf of REDISA that it is subordinate legislation and thus
excluded from the functus officio principle by s 10(3) of the Interpretation Act.
It needs to be emphasised that the purpose of this exercise is to determine
whether the plan is an instrument of subordinate legislation, rather than the
Minister’s withdrawal of approval of the plan.

[29] Hoexter has set out a number of characteristics of subordinate
legislation that distinguish it from other species of administrative action. These
are: (a) legislative action is general in its application, applying impersonally to
society as a whole or a groups within it, rather than to individuals; (b)
legislation is concerned with the implementation of policies, rather than the
resolution of individual disputes; (c) legislation tends to operate prospectively
and creates legal consequences for the period after it comes into force; (d)
legislation is usually intended to remain in force indefinitely (but may be
designed to lapse after a prescribed period); (e) legislation requires
promulgation – usually publication in the Government Gazette – before it
acquires the force of law; and (f) often legislation will require further
administrative action in order to make it effective, such as the enforcement of
a sanction.24

[30] The plan contains many of these features. It is general in its
application, imposing obligations on all who subscribe to it and all those who
will, once it is given effect, enter into contractual relationships with REDISA.  It
creates a system by which waste tyres will be managed over a period of time.
It is concerned with the implementation of that system rather than aspiration.
It operates prospectively. It has an indefinite life-span but, according to reg
12(1), it must be revised and re-submitted to the Minister every five years (or
sooner if needs be). In terms of reg 11(4), an approved plan must be
published in the Government Gazette. It contains the framework within which
action will be taken to deal with waste tyres in an environmentally acceptable

24 Hoexter at 52-53; Baxter at 349-351.

way. In my view, therefore, the plan is an instrument of subordinate
legislation.

[31] The way in which the plan has been made requires brief comment.
Usually legislative instruments are drafted by drafters who work for the
legislative functionary concerned. That, as this case shows, is not the only
way in which subordinate legislation can come into being. In this case, the
drafting of plans has, in effect, been out-sourced to private individuals. Once
the efforts of the drafter of a plan meet with the approval of the Minister, she
gives legal effect to the plan by approving it and publishing it in the
Government Gazette. This is an example of what Hoexter calls negotiated
rulemaking.25

[32] My conclusion is that the July plan is legislative in nature. While it
cannot be described as a set of regulations or a by-law, it can be described as
rules for purposes of s 10(3) of the Interpretation Act. The Minister was
empowered by the Waste Act and the Waste Tyre Regulations to approve the
July plan. A power to make rules was therefore conferred on her. She
exercised that power when she approved and published the July plan. She
was also empowered by s 10(3) to rescind the plan. That being so, the
functus officio principle has no application and did not prevent her from
withdrawing the July plan.

Procedural propriety and the November plan

[33] It was argued on behalf of the appellants that if the Minister was not
functus officio in relation to the July plan, her approval of the November plan
was invalid because no public participation process was followed prior to its
approval and publication.

[34] It is common cause that prior to the July plan being approved an
unimpeachable public participation process was conducted in respect of a

25 Hoexter at 86-87.

plan that contained everything that the July plan contained except for item
15.1. That item was never subjected to the public participation process and
so, when it was added to the plan, it was the basis for the interim interdict
being granted. The November plan was the July plan minus item 15.1. It was
thus the exact same plan that had been the subject of the public participation
process.

[35] I can see no point in commencing the public participation process
again. It would serve no useful purpose. The Minister did not act in a
procedurally unfair manner when she approved and published the November
plan without the public participation process being run again.

The content of the November plan

[36] The point was taken that the subject matter of item 15.1 – targets – had
to form part of the plan and, if they were not included, the plan would be
invalid. I have my doubts whether the failure to include an item in a plan would
mean that the whole plan would be invalid but the argument flounders on two
more fundamental grounds.

[37] The first is factual. Every requirement mentioned in reg 9(1) of the
Waste Tyre Regulations is dealt with in the November plan, including an
‘annual projection of the quantities and types of tyres that are manufactured or
imported that will become waste tyres and will be managed through the
integrated industry waste tyre management plan’26 and the ‘timeframes in
which the different types of tyres will be managed’.27 These are the
requirements that, it was argued, were not included in the plan. The argument
is not factually correct. Item 5, headed ‘Projected volumes’, deals with the
requirements of reg 9(1)(b) and item 15, headed ‘Implementation Target
Dates and Timeframe’, deals with the requirements of reg 9(1)(j).

26 Regulation 9(1)(b).
27 Regulation 9(1)(j). Note that two reg 9(1)(j)s appear in the regulations. The first, the sub-
regulation quoted, should, in fact, be reg 9(1)(i).

[38] Secondly, the argument is based upon a misunderstanding of the
purpose of reg 9(1) and its relationship with s 32 of the Waste Act and reg 11.
Regulation 9(1) informs the drafter of a plan what he or she must include in
the draft for submission to the Minister. It is intended to direct the attention of
the drafter to what, most likely, needs to be in the plan, and to ensure that the
Minister does not have to refer the plan back for attention to be given to
matters that should have been considered.

[39] Section 32 empowers the Minister to approve a plan, ask for additional
information, require amendments to a plan or reject a plan, and reg 11 mirrors
these powers in respect of waste tyres specifically. Together they vest a
broad discretion in the Minister to fashion a plan that is suitable and
appropriate. In so doing, she may take the view that certain requirements of
reg 9(1) that have been dealt with in a plan are irrelevant, serve no purpose or
are counter-productive. A plan that, after the Minister’s amendments have
been made, does not deal with an aspect that is specified in reg 9(1) because,
in the Minister’s view, it is not relevant to that plan, cannot be assailed on that
account.

Who may submit a plan?

[40] It was argued on behalf of the appellants that it is only tyre producers
who may submit plans to the Minister, that REDISA is not a tyre producer and
that consequently the Minister was not able validly to approve either of its
plans. It is common cause that REDISA is not a tyre producer. It is an
independent non-profit company formed to administer a plan. A significant
number of tyre producers had subscribed to its plan prior to its submission to
the Minister for her approval.

[41] Regulations 6(3) and (4) of the Waste Tyre Regulations were said to be
the legal basis for this argument. Regulation 6(3) provides that a tyre producer
operating at the time that the regulations came into force had to either prepare
a plan for approval by the Minister or register with an existing plan and comply
with the plan concerned. Regulation 6(4) provides that a tyre producer

commencing business after the regulations had come into force ‘shall not
begin operations without an integrated industry waste tyre management plan
approved by the Minister or without providing written confirmation to the
Minister of acceptance into an existing integrated industry waste tyre
management plan approved by the Minister’.

[42] These regulations do no more than impose obligations on tyre
producers to either formulate their own plan for approval or to subscribe to an
existing plan. They say nothing about who may draft plans for submission to
the Minister. That is dealt with by s 28 of the Waste Act. Section 28(1)
provides that where waste is generated in an industry that operates in more
than one province, ‘the Minister may by written notice require a person, or by
notice in the Gazette require a category of persons or an industry, that
generates waste to prepare and submit an industry waste management plan
to the Minister for approval’. Section 28(7)(a) provides, however, that the
person, category of persons or industry referred to in s 28(1) may elect to
prepare a plan for submission to the Minister ‘without being required to do so
by the Minister’.

[43] Section 28 contemplates that where waste is generated in an industry,
plans to manage it must be formulated, approved and applied in order to deal
with the environmental harm that has been identified. Understandably, the
Waste Act is more concerned with this than with who drafts plans. In other
words, the identity of the drafter of a plan is not a jurisdictional fact for the
valid approval of the plan. The import of ss 28(1) and (7)(a) is that any person,
whether they are connected with an industry that generates waste or not, may
draft a plan for the management of waste in that industry and the Minister
may, in her discretion, approve that plan. There is, accordingly, no merit in the
argument that as REDISA is not a tyre producer the Minister could not have
validly approved either of its plans.

The types of tyres

[44] The final argument that was raised on behalf of the appellants is that
both the July and November plans deal with pneumatic and solid tyres, but it
is only pneumatic tyres that may be regulated by a plan. The plans are, so the
argument proceeds, invalid because of the inclusion of solid tyres.

[45] Regulation 1 of the Waste Tyre Regulations defines a tyre to mean ‘a
continuous pneumatic covering made of natural rubber or synthetic rubber or
a combination of natural and synthetic rubber encircling a wheel, whether
new, used or retreaded’. This definition contemplates only tyres that are
capable of being filled with air in order for them to suit their purpose.28 Solid
tyres are not envisaged by the definition. The regulations thus contemplate
plans for the management of waste pneumatic tyres only, and not solid tyres.
Whether that is a sensible distinction to draw is not the subject matter of
judicial review.29

[46] The fact that the November plan deals with solid tyres as well as
pneumatic tyres does not necessarily mean that the entire plan must be set
aside. If the bad can be severed from the good, the bad can be set aside and
the good left intact. The correct approach to the question of whether the bad
in an instrument of subordinate legislation can be severed from the good was
set out as follows by Centlivres CJ in Johannesburg City Council v
Chesterfield House (Pty) Ltd:30
‘The rule, that I deduce from Reloomal's case is that where it is possible to separate
the good from the bad in a Statute and the good is not dependent on the bad, then
that part of the Statute which is good must be given effect to, provided that what
remains carries out the main object of the Statute. In Arderne's case the main object

28 The Concise Oxford English Dictionary defines the word pneumatic to mean ‘containing or
operated by air or gas under pressure’.
29 Sinovich v Hercules Municipal Council 1946 AD 783 at 802-803: ‘The law does not protect
the subject against the merely foolish exercise of a discretion by an official, however much the
subject suffers thereby. But the law does protect the subject against stupid by-laws or
regulations, however well intended, if their effect is sufficiently outrageous.’
30 Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 (A) at 822D-F.
See too S v Prefabricated Housing Corporation (Pty) Ltd & another 1974 (1) SA 535 (A) at
539C-F; S v O’Malley 1976 (1) SA 469 (N) at 477E-G.

of the Ordinance was to raise revenue by means of taxation and the good could
easily be separated from the bad. The main object of the Ordinance was, therefore,
not defeated by holding that the Ordinance, shorn of its bad parts, was valid. Where,
however, the task of separating the bad from the good is of such complication that it
is impracticable to do so, the whole Statute must be declared ultra vires. In such a
case it naturally follows that it is impossible to presume that the legislature intended
to pass the Statute in what may prove to be a highly truncated form: this is a result of
applying the rule I have suggested and is in itself not a test.’

[47] Severance is possible in this case. It is possible, textually, to separate
the references to solid tyres from references to tyres as defined in the Waste
Tyre Regulations. The references to tyres as defined are not dependant in
any manner on the references to solid tyres, because solid tyres are always
referred to expressly and separately from tyres as defined. It is a simple
matter to order that any reference to solid tyres in the November plan be set
aside. This does no violence to the objects of the plan. Indeed, all that it does
is to leave the remainder of the plan in place and consistent with the Waste
Tyre Regulations.

Conclusion and order

[48] The appellants have failed in respect of all of the grounds upon which
the appeal was argued except for their partial success in relation to the
inclusion in the November plan of solid tyres. The references to solid tyres are
severable. They have succeeded to such a limited extent that, although the
order of the court below must be amended to reflect the partial success they
have achieved, the appeal must nonetheless be dismissed. It cannot be said
that they have achieved substantial success and so are not entitled to costs,
either in this court or in the court below. The respondents, on the other hand,
have achieved substantial success and the costs order in both courts must
reflect that fact.

[49] I make the following order:
1 Save to the extent set out in paragraph 2, the appeal is dismissed with
costs, including the costs of two counsel.
2 The order of the court below is amended to read:
‘(a) Save to the extent set out in paragraph (b), the application is dismissed
with costs, including the costs of two counsel.
(b) Every reference to solid tyres in the second respondent’s Integrated
Industry Waste Tyre Management Plan, approved by the first respondent and
published in Government Notice 988 in Government Gazette 35927 of 30
November 2012, is set aside.

___________________

C Plasket

Acting Judge of Appeal

APPEARANCES:

For the First Appellant:
L W de Koning SC (with him B C Stoop)

Instructed by:

Barnard Inc., Pretoria

McIntyre van der Post, Bloemfonein

For the First Respondent:            S Joubert SC (with him P A Swanepoel)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For the Second Respondent:       D Unterhalter SC (with him A Louw SC)

Instructed by:
Cliffe Dekker Hofmeyer Inc c/o Friedland
Hart, Pretoria

Claude Reid Inc., Bloemfontein