Article: Stringent measures against smoking: But are they constitutional?

The period to comment on draft smoking regulations runs until the end of June 2012. When the department of health has considered comments received and made any adjustments to the measures, the health minister will probably formally issue the regulations. They will introduce uncompromising rules to govern smoking in public places. The governing statute, the Tobacco Products Control Act of 1993 as amended, makes clear that a ‘public place’ includes private premises to which the public is admitted.

The new regulations will revoke the relatively benign ministerial notice of September 2000 which currently permits smoking indoors in bars, nightclubs, casinos and places of entertainment, restaurants, hotels, guest-houses, bed-and-breakfasts, game lodges, South African-registered passenger ships, passenger trains, workplaces, and airports. The person in charge of a restaurant, hotel or workplace may designate portion of the premises as a smoking area. These designated smoking areas must be properly partitioned and ventilated so air doesn’t circulate back into the non-smoking area. Smoking in workplaces is subject to additional conditions.

The new draft regulations propose repealing this benign regime. The new measures will restrict smoking to outdoor areas only. The person in charge of a public place may designate ‘part of an outdoor area of the premises’ for smoking. The current dispensation allowing smoking areas indoors will be revoked, despite the present requirements that the areas are properly partitioned and ventilated so non-smokers aren’t affected.

The governing statute authorises the minister to prohibit smoking in an outdoor public place, ‘where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard’. To implement this, the draft regulations will prohibit smoking in: stadia, arenas, sports facilities, playgrounds and zoos; school premises and childcare facilities; health facilities; outdoor eating or drinking areas; venues when outdoor events take place; covered walkways or parking areas; outdoor queuing or service areas; and public bathing beaches not less than 50 metres from the closest person near the demarcated swimming area. Persons in charge of these places will be obliged to ensure compliance.

The draft regulations allow for a measure of relaxation: persons in charge of public places may designate outdoor smoking areas. Designated smoking areas must conform to prescribed requirements. Significantly, they must be ‘set aside exclusively as a smoking area’. The person in charge must ensure that ‘no food or refreshment is served’, that ‘no entertainment is provided’, and that ‘smokers are discouraged from remaining in the area longer than is necessary to smoke a cigarette’. This will mean that persons smoking at a stadium, sports facility, or outdoor restaurant should not be able to watch the sports match taking place, be served refreshment or provided with entertainment, or linger smoking.

A person convicted of smoking in a public place can be fined R500. But the person in charge of the place who fails to comply with the proposed regulation obliging him to ensure that no person smokes could be fined up to R100,000. Moreover, where the person in charge has set aside a smoking area, but fails to ensure that no refreshment is served or entertainment provided there, similarly, could be fined R100,000.

The object of the amended statute has been changed, from discouraging advertising and promoting smoking, to deterring smoking. The statute’s preamble used to acknowledge that tobacco use is a ‘widely accepted practice among adults, which makes it inappropriate to ban completely’. Amendments in 2007 added the assertion that tobacco use causes ‘widespread addiction’. The acknowledgment that tobacco was widely accepted and should not be banned was deleted. Now tobacco policy will align with the ‘Framework Convention on Tobacco Control’ of the World Health Organisation (WHO). The Convention requires signatory states to adopt tax and price measures and non-price measures, to reduce demand for tobacco. Governments should, as one of the non-price measures to reduce demand, promote ‘economically viable alternatives’ for tobacco growers. It is fair to say that tobacco will henceforth be treated as an addictive substance like opium.

The statute aims now to deter tobacco use generally. The new regulations seek to achieve this by ensuring that smoking in public is not comfortable or enjoyable. Would a court strike down these severe measures? Are the statute and regulations disproportionate and constitutionally unjustifiable in an open society based on dignity and freedom?

Restricting smoking to designated outdoor smoking areas breaches the right to have one’s dignity respected. The proposed regulations will not allow smoking except in designated areas devoid of pleasant or agreeable surroundings or amenities. This will arguably have a ‘symbolic stigmatising effect’ on smokers, as the Constitutional Court ruled in connection with anti-homosexuality laws. But will the proposed regulations be declared invalid like the anti-gay laws?

Designated outdoor smoking areas breach smokers’ right to privacy. Requiring smokers to be isolated and inconvenienced in an open public place will infringe their ‘intimate right to be let alone’ free of undue intrusion into their personal privacy. A person is entitled to some privacy even in public, as Judge Hlophe in the Cape Town high court justly observed. Smoking in a public place of entertainment or refreshment should only be subject to reasonably necessary restrictions in the interest of health or safety. Do the proposed regulations go beyond what is reasonable?

Prohibiting indoor smoking is a disproportionate interference with property rights. Prohibiting all indoor smoking, even in cigar bars, and even if no non-smokers are present or affected, is a deprivation of the property rights of owners and lessees of the premises. But is it a substantial interference that goes beyond what is normal in an open democratic society?

This month, the supreme court of appeal handed down judgment in a case brought by a tobacco company to strike down the provision in the tobacco statute that defines prohibited advertising or promoting of tobacco products. The health minister conceded that the statutory provision indeed limited the company’s right to communicate information about its tobacco products to consenting adult tobacco consumers, and the smokers’ corresponding right to receive information. The issue for the court was whether this limitation was constitutionally justifiable. The court found that the public-health considerations addressed by the statute and the WHO Framework Convention make a compelling case for justification of a ban on the advertising and promotion of tobacco products. Accordingly, ruled the court, the statute’s limitation of the right to advertise or promote tobacco products was constitutional.

At first blush, this judgment might lead one to conclude that the courts would similarly conclude that the proposed new measures to restrict smoking to designated outdoor smoking areas are also not unconstitutional. But this is not clear-cut. Banning smoking indoors, even where non-smokers are unaffected, is not well designed to deter tobacco use. The measures in the draft regulations impair fundamental rights and impose inconvenience, yet probably won’t eradicate smoking. Tobacco isn’t forbidden outright, and smoking is still allowed in unlisted outdoor public places, private dwellings, and places not open to the public. The regulations are not rationally connected to the deterrence objective. But will the courts agree that this disconnect is so great that the regulations should be struck down? Will the courts accept that the regulations are a disproportionate restriction of individual smokers’ rights to dignity, privacy and freedom of association?

Or will the courts, accepting as they do that the gravity of the hazards of smoking far outweigh the interests of smokers, rule in favour of these legislative measures? The measures aim to protect people against themselves. On the face of it, this is a laudable objective. But it puts at risk important values of personal freedom and individual responsibility. This should at least give the courts pause.

A more mundane matter: The provision in the draft regulations which would prohibit smoking on beaches is void for uncertainty. It seeks to prohibit smoking on public bathing beaches within 50 metres from the closest person ‘near’ the demarcated swimming area. This wording, prohibiting smoking within a distance from the closest person ‘near’ the swimming area, is too vague to be enforceable. A law has to indicate with reasonable certainty to those bound by it what is required of them so that they may regulate their conduct accordingly. The courts have ruled that municipal regulations prohibiting the erection of buildings ‘near’ street frontage are void for uncertainty. And bylaws providing that no hawker should for the purposes of his trade return on the same day to any spot ‘or to the immediate vicinity thereof’ were likewise held void for uncertainty. This draft regulation, prohibiting smoking on public bathing beaches within 50 metres from the closest person ‘near’ the demarcated swimming area, will suffer the same fate.

Another practical issue: Many if not most sports facilities, playgrounds, zoos, school premises, childcare facilities, health facilities and public bathing beaches are owned or controlled by municipal or provincial governments. Despite the harsh fines that may be imposed on owners or persons in control of these outdoor public places for failing to ensure that no person smokes there or that their designated outdoor smoking areas comply with the regulations, it may be doubted if local governments have the resources to carry out their obligations. Municipalities are notionally liable to prosecution for criminal offences. But it is doubtful if the regulations will be enforced against cities and towns that contravene the new measures.

AUTHOR Gary Moore practised law for three decades and has authored articles and monographs with the Free Market Foundation advocating deregulation, and worked with the FMF and the Law Review Project on law reforms which helped free black business activities from apartheid restrictions. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.

FMF Feature Article / 21 June 2012