Roy Cokayne

The latest urgent application by the Retail Motor Industry Organisation (RMI) to halt implementation of the waste tyre plan of the Recycling and Economic Development Initiative of South Africa (Redisa) was “obstructive”, the North Gauteng High Court was told yesterday.

“They [the RMI] are obstructive and should not be considered a player. The RMI did not want a waste tyre management plan in the country,” said Salie Joubert, counsel for Water and Environmental Affairs Minister Edna Molewa.

Joubert said this view was based on the RMI’s argument that only tyre producers were permitted to produce and submit a waste tyre plan.

This meant that not one of the three role-players that had submitted waste tyre plans to Molewa was entitled to have their plan approved because none of them were tyre producers, he said.

Lourens de Koning, the counsel for the RMI, said Redisa, a non-profit company, was not a tyre producer and not permitted in terms of the regulations to develop and submit a plan.

De Koning said only tyre producers were permitted to produce and submit a waste tyre plan because they produced the goods that caused the waste, “and it’s not for others to come and make money from it”.

He said tyre producers faced irreparable harm if the Redisa plan was implemented because Redisa stood to collect R624 million a year in the form of levies from tyre producers.

David Unterhalter, Redisa’s counsel, said the irony of the RMI’s contention that only tyre producers could create a waste tyre plan was that the RMI, in a representative capacity, was busy producing such a plan.

The RMI is applying for an urgent interdict declaring Molewa’s withdrawal on November 30 of her approval of the Redisa plan gazetted in July last year null and void, and to review and set aside Molewa’s approval of a revised Redisa plan for immediate implementation because, among other things, she had allegedly acted contrary to the provisions of the enabling legislation.

The RMI claimed Molewa’s withdrawal of her earlier approval was “an ingenious but unlawful stratagem to foil the consequences” of the court order it had obtained.

Judge Neil Tuchten, in a judgment last year granting the RMI a temporary interdict halting the implementation of the Redisa plan, said the waste tyre targets in the approved version of the Redisa plan were a material provision of the plan but had been entirely omitted from the version published for public comment.

Joubert said the reconsideration by Molewa of the Redisa plan gazetted in July, the withdrawal of this plan and approval of the new Redisa plan in November, was based on Judge Tuchten’s judgment and followed legal principle.

De Koning said the regulations stated that a plan had to contain waste tyre reduction targets and republishing the Redisa plan without these targets meant the plan did not comply with the regulations and included “a material void”.

The RMI said Molewa’s decision to approve the Redisa plan in July constituted a final decision and she was not in law entitled to withdraw her approval because it constituted lawful administrative action that was valid and binding until set aside by a court.

Joubert said Molewa had the implied authority from the regulations to review and amend waste tyre management plans and the RMI’s contention that her actions were ultra vires was without merit.

Unterhalter said the actions of Molewa involved sub-ordinate lawmaking, which permitted Molewa to revoke, withdraw and vary decisions she had previously taken, and was not administrative action.

De Koning stressed Molewa had confirmed withdrawing the Redisa plan gazetted in July and approving a new plan in November and that she was involved in administrative action. Judgment was reserved.