Aziz Hartley and Sapa
THE right to health outweighs the right to smoke, the Supreme Court of Appeal has ruled.
The court has dismissed an appeal by British American Tobacco of SA (Batsa) against an order by the North Gauteng High Court that confirmed amendments to anti-smoking legislation.
Last night, SA Medical Association national chairman Mark Sonderupt welcomed the judgment as a “step in the right direction” to curtailing smoking.
Smoking-related diseases included cancers, he said. He cited cancer of the bladder and pancreas as examples.
“(Smoking) is one of the major contributors to heart and lung disease. Any mechanism to curb the wanton exposure of people to smoking is welcomed,”
“Rights are not absolute. There has to be balance. The court made the right decision.”
The appeal concerned the proper interpretation of an amendment to section 3(1) (a) of the Tobacco Products Control Act, which prohibits the promotion and advertising of tobacco products.
Batsa approached the North Gauteng High Court for a proper interpretation.
It argued that in terms of Section 16 of the constitution, the impugned prohibition limited the company’s right to engage in commercial expression and curtailed the right of tobacco consumers to freedom of expression.
Batsa argued that tobacco consumers were denied the right to receive information concerning tobacco products.
The tobacco giant asked the court to find that the impugned provision did not apply to one-to-one communications among tobacco manufacturers, wholesalers and retailers, importers, and consenting adult consumers.
The Supreme Court said the appeal centred on whether the limitations were reasonable and justifiable in an open, democratic society.
This included the nature and extent of the limitations as required by Section 36 of the constitution.
The court held that it had to consider the rights of smokers to receive information concerning tobacco products and
the government’s obligation to take steps to protect its citizens from the hazardous and damaging effects of tobacco.
It found there were powerful public health considerations for a ban on advertising and promoting tobacco products, and that the hazards of smoking far outweighed the interests of smokers.
The SCA held that SA had international law obligations to ban tobacco advertising and the promotion of tobacco products.
It was found that the prohibition on advertising and the promotion of tobacco products was reasonable and justifiable as required by the constitution.
Batsa spokeswoman Itumeleng Langeni said the company was disappointed and would study the judgment before deciding what to do next.
“The company had appealed against the initial judgment by the Northern Gauteng High Court because we believed the amendment act went too far in curtailing our right to communicate with consenting adult consumers.
“British American Tobacco of South Africa supports and is committed to sensible and enforceable tobacco regulation, and there are a number of provisions in the said Amendment Act that the company actively supports,” she said.
Tobacco Institute of Southern Africa chief executive Francois van der Merwe said: “I think (Batsa’s) case was well presented.
“We’ll first be studying the judgment before we can make further comment, but what I can say now is that I’m very disappointed.”
Smoking in restaurants, pubs, walkways and even on a crowded beach would become illegal if the Department of Health’s proposed amendments to the law are accepted.
Smokers will not be allowed to light up within 10 metres of a window or doorway in a public place.
Employers and the owners of restaurants would be allowed to demarcate an outdoor area for smokers subject to stringent conditions.
The deadline for submissions commenting on the proposals is the end of the month.
The Free Market Foundation had called on the public to oppose amendments and had vowed to consider challenging its constitutionality if passed.
But the National Council Against Smoking has disagreed with the foundation’s view.
“The law works because it is popular; there is wide-spread support for it,” the council’s director, Peter Ucko, said earlier this week.