As with various environmental management aspects, waste management in South Africa has seen a number of regime changes. In 2009, when the National Environmental Management: Waste Act, 2008 (NEMWA) came into effect, it repealed, among others, section 20 of the Environment Conversation Act, 1989 (ECA). Section 20 of ECA required any person intending to establish, provide or operate a disposal site (ie a site used for the accumulation of waste for the purpose of disposing or treating such waste) to first obtain a permit.

NEMWA introduced a new licensing system, which requires a person who wishes to conduct a listed waste management activity to apply for a waste management licence (WML). This licensing system replaced and expanded the previous permitting system under section 20 of ECA, which largely regulated traditional landfill sites. NEMWA also introduced several savings and transitional provisions, which allowed for the continued operation of certain waste disposal facilities and waste management activities until such time as they are called upon to apply for a WML.

Now, 16 years later, the Minister of Forestry, Fisheries and the Environment (Minister) has called upon persons operating under certain of the transitional arrangements of NEMWA to apply for a WML.

Persons who are required to apply for a WML

On 10 December 2025, the Minister issued a notice calling on certain persons to apply for a WML by no later than 9 December 2027 (WML Notice). The WML Notice provides that the following persons are required to apply for a WML:

• persons who operate a waste disposal facility that was established prior to the commencement of ECA, where that facility was operational on the date of the coming into effect of NEMWA;
• holders of a permit issued in terms of section 20 of ECA, where the Minister is the licensing authority in terms of section 43 of NEMWA; and
• persons who conducted a waste management activity listed under Schedule 1 to NEMWA at the time of the commencement of NEMWA, and who, immediately before that date, lawfully conducted the listed waste management activity in accordance with Government Notice No. 91 of 1 February 2002, published under section 20(5)(b) of ECA.

Since it was probably not contemplated by the drafters of NEMWA that the Minister would only call upon persons operating under the transitional arrangements provided for in sections 80(4), 81(2) and 82 of NEMWA (Transitional Arrangements) to apply for a WML 16 years after NEMWA took effect, the WML Notice is not without complications.

First, it is evident from the wording of the Transitional Arrangements that the intention of these provisions was to regulate activities or facilities that were operational at the time NEMWA came into effect. However, in 2026, 16 years after NEMWA commenced, a facility or activity that was operational at that time may no longer be operational. Persons in control of such now non-operational facilities would need to consider their legal obligations and seek appropriate advice.

Second, paragraph (b) of the WML Notice calls upon holders of permits issued in terms of section 20 of ECA to apply for a WML and proceeds to state “where the Minister is the licensing authority in terms of section 43 of the Waste Act”.

This reference to section 43 of NEMWA gives rise to uncertainty, as section 43(1) of NEMWA provides that the Minister is the licensing authority only in the following circumstances:

• the activity involves the establishment, operation, cessation or decommissioning of a facility at which hazardous waste has been or is to be stored, treated or disposed of
• the activity involves obligations in terms of an international obligation;
• the activity is undertaken by a national or provincial government department or certain statutory bodies;
• the activity will affect more than one province or traverse international boundaries; or
• two or more activities will be undertaken at the same facility and the Minister is the licensing authority for any one of those activities.

If strictly interpreted, only a limited number of historic ECA facilities would need to be regulated under the WML Notice. It is suspected that the intention was to regulate all former ECA facilities, provided the section 20 permits were signed by the relevant Minister at the time. This area of uncertainty would similarly require holders of old ECA permits to seek advice on compliance.

Finally, in relation to paragraph (c) of the WML Notice, two requirements must be met. First, a person must have conducted (and, as suggested above, must continue to conduct) a listed activity under Schedule 1 to NEMWA at the time of the commencement of NEMWA. Second, that activity must have been lawfully conducted in accordance with the directions issued by the Minister in Government Notice No. 91 of 1 February 2002, published under section 20(5)(b) of ECA (Small Waste Site Directions).

As the Small Waste Site Directions relate only to waste disposal facilities, it appears that the intention of both section 82 of NEMWA and paragraph (c) of the WML Notice is to apply only to listed waste management activities relating to the operation of waste disposal sites.

A further complication arises from the reference in paragraph (c) of the WML Notice to Schedule 1 to NEMWA. Schedule 1 was included as a temporary list of waste management activities requiring a WML until the Minister published a list of waste management activities in terms of section 19 of NEMWA. As the Minister has since published such a list, Schedule 1 is no longer applicable. It is also important to note that several activities previously listed in Schedule 1 are no longer listed as waste management activities or have been materially amended, meaning that a WML may no longer be required.

In these circumstances, and notwithstanding the silence of the WML Notice on this issue, it must be assumed that the WML Notice only applies to waste management activities that required a WML under Schedule 1 and that still require a WML because they are similarly listed under the notice published by the Minister.

The WML Notice concludes by stating that it does not apply to facilities with expired WMLs, or to WMLs that have been suspended or revoked.

Application procedure

On the same day that the Minister published the WML Notice, the Minister also published regulations setting out the procedure to be followed by the persons called upon to apply for a WML (Application Regulations).

The Application Regulations include a prescribed form to be completed by applicants and submitted to the Department of Forestry, Fisheries and the Environment (DFFE). The prescribed application form must be accompanied by a pollution impact assessment (PIA) report compiled by an independent specialist. The PIA must contain an assessment of the pollution and degradation caused by the applicant’s activities, as well as an environmental management programme that conforms to the minimum requirements set out in Appendix 2 to the Application Regulations and includes mitigation measures for each impact identified during the PIA.

The Application Regulations also provide for a mandatory public participation process (PP Process) of 30 days, to afford members of the public an opportunity to submit comments on the application. Comments received during the PP Process, together with the applicant’s responses, must be included in the application submission.

Upon receipt of all information required by the licensing authority, the licensing authority is required to decide the application within 120 days.

It is evident that several uncertainties arise from the WML Notice. Furthermore, in the absence of an explicit offence provision in the WML Notice or the Application Regulations, the consequences for persons operating under the Transitional Arrangements in sections 80(4) and 82 of NEMWA are unclear.

However, section 81(3) of NEMWA provides that section 20 permits will automatically lapse if an application is not submitted within the two-year period stipulated in the WML Notice. Accordingly, the operators of historically authorised waste disposal facilities should carefully consider and assess whether they fall within the ambit of the WML Notice to avoid the risk of non-compliance.

By Garyn Rapson, Paula-Ann Novotny, Partners, Cobus Hoon, Senior Associate & Lia Wheeler, Candidate Attorney at Webber Wentzel