S v Director of Environmental Affairs; Ex parte: Aero Plastic Industries Ltd & Anor. (Judicial Cause 20 of 2016) [2018] MWHC 719 (14 June 2018)

S v Director of Environmental Affairs; Ex parte: Aero Plastic Industries Ltd & Anor. (Judicial Cause 20 of 2016) [2018] MWHC 719 (14 June 2018), available at https://malawilii.org/mw/judgment/high-court-general-division/2018/719.

In this case, the applicants brought judicial review proceedings challenging decisions shutting down their factories for manufacturing and distributing and/or selling plastics of less than 60 microns in contravention of Regulation 3 of the Environment Management (Plastics) Regulations, 2015, as well as the regulations themselves as having been passed without due regard to relevant factors such as the hardship the regulations would cause to the applicants, their distributors and consumers. In pursuing these complaints, the applicants received a stay order on the implementation of the ban on the manufacturing, distribution, sale, and use of plastics less than 60 microns. The High Court of Malawi dismissed the case, allowing implementation of the ban.

In regards to the first decision complained of, the applicants argued that the respondents shut down their factories without giving them an opportunity to be heard. The court dismissed the complaint, as the respondents showed that the applicants had opportunity to respond to a warning letter, but chose not to respond. 

Regarding the second complaint, that the regulations were passed without due regard to relevant factors such as the hardship the decision would cause to the applicants and others, the court determined that the processes leading to the regulations were fair, and thus that complaint, too, should be dismissed. In doing so, the court noted the respondent had twice delayed implementation of the ban to respond to industry concerns.

The court noted the respondent’s efforts to balance the competing interests of economic hardships, loss of revenue, and loss of jobs on one hand, and on the other, sustainable development within the carrying capacity of the environment. This resulted in regulations which exempted some uses of thin plastics, in addition to interim implementations of the ban, including a phased approach to give manufacturers like the applicants time to make the necessary adjustments to produce thicker plastics. 

The applicants also argued that the respondent failed to take into account  regulations governing minimum microns from other countries in the Southern Africa Development Community (SADC) region and beyond. However, the respondents demonstrated that in formulating its regulations, it recognized that countries allowing thin plastics of less than 60 microns have advanced waste management systems to combat the adverse environmental effects, unlike in Malawi. The respondent tailored its regulations accordingly. The court dismissed this complaint as well. 

Altogether, the court found that the processes leading to the decisions the applicants challenged were fair, and thus dismissed the case, lifted the stay order on the implementation of the ban, and ordered applicants to bear costs of the proceedings.