Primary briefing · Gazette
high impact 55255 · R. 7849 · 2026-08-28
Draft air quality amendments: new small boiler licensing, shortened H₂S compliance, and hard 2030 cut-off for alternative emission limits
Comment closes
Invalid Date
Proposed amendments to the listed activities and minimum emission standards under the National Environmental Management: Air Quality Act 39 of 2004 introduce a new licensing requirement for operators of multiple small boilers with a combined thermal capacity of 50 MW or more per facility, who must apply for an atmospheric emission licence within 12 months of promulgation. Hydrogen sulphide compliance timeframes are shortened from three years to 12 months. Critically, no alternative emission limits may be granted beyond 31 March 2030, ending the practice of perpetual postponements. A 30-day public comment period runs from 28 August 2026.
Who is affected
Industrial emitters and operators of combustion installationsHolders of atmospheric emission licencesOperators of small boilers (≥10 MW per unit, ≥50 MW cumulative per facility)Petroleum, petrochemical, metallurgical, cement, and chemical manufacturersEnvironmental compliance practitionersPulp and paper, waste incineration, and energy sector operators What this means for practitioners
Submit written representations or objections within 30 days of 28 August 2026 (or later national newspaper publication date)
Audit whether any facility operates multiple small boilers with combined capacity ≥50 MW — if so, prepare for new AEL application obligation within 12 months of promulgation
Review existing atmospheric emission licences for alternative emission limit conditions that may lapse after 31 March 2030
Reassess hydrogen sulphide compliance plans against the proposed 12-month (instead of 3-year) window
Primary briefing · Judgment
high impact Western Cape High Court (Full Bench) · 2026-08-28
Umkhonto Wesizwe Party and Another v Ramaphosa and Others
The applicants obtained an interim interdict restraining the Speaker and Chairperson of the Impeachment Committee from holding public hearings in a s 89 impeachment enquiry, pending review of the Independent Panel report. The respondents sought leave to appeal. The underlying review was already set down for hearing from 2 to 4 September 2026, and the Constitutional Court had previously refused direct leave to appeal on 12 August 2026.
The court held: Leave to appeal refused. The court held that the three requirements of s 17(1)(a), (b) and (c) are cumulative, not disjunctive — all three must be satisfied. The interim order fell within the class of decisions contemplated by s 16(2)(a) because it would lapse before any appeal could be heard. The discretion to hear a moot appeal belongs to the appellate court, not the court of first instance. Setting aside a lapsed order would produce no practical effect — it would amount to an advisory opinion, which courts do not give. Even arguable grounds (including jurisdiction, res judicata, stare decisis defects regarding earlier full bench decisions, and unsettled authority on the prima facie right standard) could not overcome the statutory barriers.
Legal impact: Develops procedural law in three respects: (1) confirms that s 17(1)(a), (b) and (c) are cumulative requirements for leave to appeal, not alternatives; (2) clarifies that the s 16(2)(a) mootness discretion is reserved to the appellate court — the court of first instance may only assess whether the case falls within that class; (3) identifies unresolved tension between EFF v Gordhan and Eskom CC on the prima facie right standard for interim interdicts restraining exercises of public power. The stare decisis analysis — requiring express engagement with earlier coordinate full bench decisions — reinforces discipline in High Court practice.
Who is affected
Constitutional and public law litigatorsPractitioners seeking leave to appeal interim interdictsPolitical parties and public office-bearersGovernment institutions subject to interim restraint ordersAppellate practitioners advising on mootness What this means for practitioners
When advising on leave to appeal interim orders, assess all three s 17(1) requirements cumulatively — do not treat arguable merit alone as sufficient
Do not assume the court of first instance can exercise the s 16(2)(a) discretion to entertain a moot appeal; that power belongs to the appellate court
In public-law interdict applications, address the unresolved tension between EFF v Gordhan and Eskom CC on the prima facie right standard
Ensure interim interdict judgments expressly engage with earlier coordinate full bench decisions to avoid stare decisis defects