Plastics and packaging laws in South Africa

The National Environmental Management Waste Act of 2008, as amended in 2014 (Waste Act) is the umbrella legislation for the environment. It is based on the principles and provisions contained in the National Environmental Management Act of 1998 (NEMA).

The purpose of the Waste Act is to provide for national norms and standards for the regulation of the management of waste by all spheres of government, and to provide specific waste management measures. Its inception was in fulfilment of section 24 of the Constitution of the Republic of South Africa of 1996 (Constitution), which provides all citizens with the right to environmental protection and the right to live in an environment that is not harmful to their health and well-being.

"Waste" has been broadly defined in the Waste Act to include:

1. 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 reused, recycled or recovered and includes all wastes as defined in schedule 3 to this NEMA; or
2. subject to exceptions, any other substance, material or object that may be defined as a waste by the Minister responsible for environmental affairs by notice in the Gazette.

The broad definition of waste as contemplated in the Waste Act includes substances and/or materials such as packaging and plastics waste.

There is no specific environmental legislation concerning packaging and plastic waste in South Africa. However, as set out in greater detail below, measures are being set in place in order to address these issues. In this regard, there have been various changes to the legislative framework with the aim of providing clarity on certain matters and textual amendments. The latest amendment relates to the National Environmental Management Laws Amendment Act of 2022 (NEMLA Act), which came into effect on 30 June 2023. It is however important to note that certain sections of the NEMLA Act did not come into force due to the South African Iron and Steel Institute and Others v Speaker of the National Assembly (2023) judgment finding that the following sections of the NEMLA Act are invalid:

1. section 61(c) – which inserts a new definition of commercial value;
2. section 61(j) – which inserts a new definition of trade;
3. section 61(k) – which relates to the amendment of the definition of waste; and
4. section 88 – which relates to the transitional provisions.

The definition of waste therefore remains unaltered by the NEMLA Act. 

The Extended Producer Responsibility Scheme (see 3. below) expands on the materials that were previously regulated in the various environmental and waste management legislations and its scope includes single-use products (previously plastics).

In addition, the National Waste Management Strategy (NWMS), being a legislative requirement of the Waste Act, is aimed at achieving the objectives of the Waste Act. It was developed to systematically improve the way industry stakeholders manage waste in South Africa. The strategy notes the fine balance that exists in South Africa between the social and economic development of an unequal society and the need to protect and conserve the country’s natural resources.

In particular, the 2020 National Waste Management Strategy (2020 NWMS) outlines the government's strategic approach to reduce littering and illegal dumping, and to "reducing the production of single-use plastics such as food wrappers, disposable cups, and straws that are currently destroying marine habitats in South Africa". 

The Extended Producer Responsibility Scheme provides for producer-responsibility schemes in relation to various products, including packaging or plastics. In particular, the Extended Producer Responsibility Scheme:

1. requires producers of products or class of various products to set up procedures, processes and invest resources to implement the extended producer responsibility measures linked to the collection of their products in the post-consumer stage, reuse, recycling, recovery and disposal of their products in the post-consumer stage;
2. applies to waste, which arises from the use by a consumer or an end-user of paper and paper packaging material, plastic packaging, biodegradable and compostable plastic packaging, single-use products, single-use compostable plastic products, single-use biodegradable plastic products, glass packaging and metal packaging containers, but excludes plastic carrier bags and plastic flat bags; 
3. requires producers, inter alia, to develop and submit extended producer responsibility schemes to the responsible Minister or establish a producer responsibility organisation, which must prepare and submit an extended producer-responsibility scheme to the responsible Minister; and
4. where a producer commenced operations after 15 January 2021They must, within 6 months of commencing operations, create an extended producer responsibility scheme and submit same to the Department of Forestry, Fisheries and the Environment; alternatively the producer can within 3 months subscribe to an existing extended producer responsibility scheme.

Collection targets for these schemes are applicable to a whole host of items ranging from office paper to PET plastic beverage bottles, including single use products (PS, HDPE, PET & PP). The current collection targets are effective from 5 May 2021 and will be in effect until 4 May 2026. Companies are allowed to collaborate with waste management companies, as well as informal waste collectors including non-profit organisations or producer-responsibility organisations, which will assist them and oversee their compliance with the applicable legislative framework.

There is no formalised existing or expected deposit-return scheme in relation to packaging or plastics in South Africa. Individual companies such as the Coca Cola Beverage Company have, however, implemented deposit-return schemes for their own products. The success of such schemes may influence waste legislation in South Africa.

A plastic bag levy was introduced in South Africa around June 2004, at a rate of ZAR 0.03 a bag on certain types of plastic shopping bags, with the aim of reducing litter and encouraging plastic bag reuse. The levy was increased to ZAR 0.04 a bag from 1 April 2009 and further increased to ZAR 0.06 a bag from 1 April 2013 and to ZAR 0.08 a bag from 1 April 2016. From 1 April 2018, it was increased again to ZAR 0.12 a bag and in 2020 it was increased to ZAR0.25 per bag.

In his budget speech, the Minister of Finance announced an increase in the plastic bag levy from ZAR 0.25 to ZAR 0.32 at the beginning of April 2024. Furthermore, the National Treasury has engaged in consultations on extending the current levy on plastic bags to all single-use plastics used for retail consumption, including plastic straws, utensils and packaging in 2021, however, no such extension has taken place.

The use of plastic bags dropped slightly as a result of the imposition of the levy, but then increased again due to the complexities and impediments around the application of legal or policy framework including poor and/or limited enforcement, legislation resistance, and lack of substitutes. All these factors have hindered effective and sustainable plastic bag waste management and the objectives of the levies imposed on plastic bags. 

There are no measures regarding microplastics or microbeads. Very little is known about freshwater microplastics and studies on South African marine microplastics are limited but actively being pursued. Nevertheless, the 2020 NWMS notes that pollution of the coastline and oceans by tiny pieces of plastic debris (microplastic) is causing widespread and severe negative impacts on marine biodiversity and it is crucial that South Africa, with a coastline in excess of 3000 km, works collaboratively with the international community to find practical solutions to firstly reducing the rate of plastic waste load into environment and secondly to address existing pollution.

As such, there is a real cognisance of the threat of microplastics, and a clear intention from the South African government to address these issues.

While specific recycling and waste reduction targets have yet to be established for packaging and plastics, the 2020 NWMS establishes waste targets to be met over a period of five years since the 2020 NWMS, and these include the following:

1. Promotion of waste minimisation, reusal, recycling and recovery of waste;
2. Ensuring the effective and efficient delivery of waste services;
3. Growing the contribution of the waste sector to the green economy; 
4. Achieving integrated waste-management planning;
5. Ensuring sound budgeting and financial management for waste services;
6. Providing measures to remediate contaminated land; and
7. Establishing effective compliance with and enforcement of NEMA.

Currently, the use of recycled materials in food packaging is not yet regulated. Such regulations will be rolled-out upon the implementation of the Extended Producer Responsibility Scheme.

The list of materials to be regulated in terms of the Extended Producer Responsibility Scheme is exhaustive list and includes all consumer items, from electronic and electric equipment, as well as metal, steel, tinplate and aluminium products, single use products (including cutlery, cups and garbage bags), as well as metal, glass and paper packaging.

In addition, different products also received new targets for including recycled content. For example, all single use products including food packaging, garbage bags, cups and cutlery must contain 8% of recycled material after the first year of the scheme.

There are no other related measures in our jurisdiction. It is worth noting, however, that waste-management regulation in general is still developing in South Africa. Regulations to enforce the NEMA and the Waste Act are under development although such developments have brought various challenges including, inter alia, the overly complicated definition of the term ‘waste’, which also makes the implementation of the Waste Act, NEMA and the Regulations therein even more complicated. It is interesting to note in this regard that waste is only waste until such time as it is reused, recycled or recovered.

Despite the complexities of the implementation of the regulatory framework, the NEMLA Act and the implementation of the Extended Producer Responsibility Scheme demonstrate further interests in South Africa for the legislation of measures to further protect the environment and create a concrete legal system that imposes duties upon South African civil and corporate society to act in a manner, which is safe for and beneficial to the environment. In addition, the Extended Producer Responsibility Scheme brings about the long-awaited change in the regulation of waste management, given its broad scope of products that it applies to.

Further, the Competition Commission in South Africa intends to conduct a market inquiry relating to polymers. In mobilising the intended inquiry, the Competition Commission issued the terms of reference (TOR) which were open for public comment until the 14th of March 2024, after which the final TOR will be reviewed and published.  In its current form the TOR sets out that the primary objective of the inquiry related to polymers particularly as it pertains to price setting mechanisms and barriers to entry into this specific market. However, it is not clear at this stage if the issue of plastic converters will be included in the inquiry as the TOR appears to be silent on this issue.

This chapter was last updated on April 2024 and does not reflect any subsequent developments in the law.