LANDFILL LEGISLATION OP-ED
Waste pickers play an important environmental and economic role, but the law lets them down
There is growing recognition of the need to integrate waste pickers into the ‘mainstream economy’. Yet, the fragmented contemporary regulatory framework is not fit for purpose and needs reform.
In late January 2022, Michelle Banda argued in Maverick Citizen that waste pickers or reclaimers must be integrated into the “mainstream economy”. The article reflected on the substantial cost savings that the reclaimers have brought about for municipalities and the importance of their work for the environment, given that these workers collect up to 90% of all recycled paper and packaging.
In this respect the Colombia Constitutional Court has also noted that:
“The activities carried out by the waste pickers has brought unarguable benefits to society by mitigating, in great part, the environmental effects caused by the careless growth of industrialisation and urban settlement. However, far from being valued, they are made more invisible and excluded from the possibility of participating in the market they know every day.”
This is also true for waste pickers in South Africa, where despite their substantial contribution to the economy and the environment, these workers have been marginalised and face numerous instances of harassment by public authorities.
The Department of Forestry, Fisheries and the Environment (DFFE) adopted the waste picker integration guidelines to promote the integration of these workers into the formal waste economy. The guidelines recognise the need for legislative changes to bring about this integration and explicitly recognise the need to amend landfill permits to allow waste salvaging on more landfills.
However, in a study we recently published in Development Southern Africa we examined the permits of general waste landfills in three metropolitan municipalities and found that waste salvaging was only allowed at about a third of the landfills considered in the study. Only Johannesburg allowed reclamation on more than 50% of general waste landfills. The other metros, Ekurhuleni and Cape Town, permitted it on less than 30%.
Waste reclamation is taking place on several of these landfills despite the prohibition. This can be seen in the case of Ubisse v Enviro-Fill (Pty) Ltd which concerned a claim against a landfill for injuries suffered by reclaimer Lindeo Ubisse on the Rooikraal General Waste Disposal Site.
At the time of her injuries, reclamation on the site had been prohibited. Still, the socioeconomic realities of the community meant that for hundreds of people in the nearby townships, reclamation was their only means of sustaining their livelihoods.
The court acknowledged that the “social value of permitting reclamation is beyond question”. Without these reclaimers, many landfills in Gauteng would need to be closed much earlier when there is already a shortage of landfill space.
In the Ubisse case, the court also reflected on the importance of implementing appropriate safety measures to promote occupational health and safety on landfills. The court reflected on the obligations imposed on the landfill by the Minimum Requirements for Waste Disposal by Landfill. The minimum requirements contain important provisions on occupational health and safety and provide that:
“The (landfill) operator must therefore ensure that the reclaimers, as a minimum, wear suitable protective clothing, in particular industrial gloves and boots with protective soles. They should also wear highly visible tunics. If this equipment is provided by the Permit Holder, it could also become an effective means of identification and of ensuring that reclaimers are registered.” (Appendix 10.3)
The landfill should also implement measures to ensure that a separate area is set aside for the reclaimers to work away from the landfill’s working face. Alternatively, where reclamation takes place on the working face, the landfill should be divided into two working cells. Reclaimers should only ever work on one cell at a given time while machinery operates in the other cell covering the waste not recovered by the reclaimers. These provisions all have an important role in promoting a safer work environment for reclaimers.
Nevertheless, the minimum requirements are only binding on a landfill where they have been incorporated into the landfill’s operating permit. Our study found that in the Ekurhuleni and Cape Town metros, slightly more than 60% of the general waste landfills were considered bound by the minimum requirements. In Johannesburg they bind only 35%.
The effect of this failure to incorporate the minimum requirements into permit conditions consistently means that the reclaimers’ rights on landfills differ not only from municipality to municipality but also between different landfills within the same municipality. This also undermines the positive contribution of the minimum requirements to occupational health and safety in practice.
Therefore, it is increasingly clear that there is a substantial disconnect between the law and the practical reality on landfills. Reclamation should only be prohibited at those landfills where safe reclamation would not be possible, such as hazardous waste landfills. This would enable landfill operators to better allocate enforcement resources to landfills where the prohibition is essential.
Ideally, the minimum requirements concerning reclaimers should also apply to all landfills. It seems illogical to confine the protection of the minimum requirements to reclaimers on only a limited number of landfills.
The provisions in the minimum requirements on the formalisation of reclamation activities on a landfill can also contribute positively to the integration of waste pickers into the formal economy. DM
Louis Koen is an assistant lecturer and PhD candidate at the University of Johannesburg. Professor Elmarie Fourie is an associate professor and head of the Department of Public Law at the University of Johannesburg. The views expressed in this article are those of the authors and not necessarily those of the University of Johannesburg.