The draft regulations would criminalise smoking in any building, outdoor venue, public or private beach, outdoor drinking or eating area, park, walkway, parking area, or within 10 metres of any doorway or window.
The draft regulations would criminalise smoking in any building, outdoor venue, public or private beach, outdoor drinking or eating area, park, walkway, parking area, or within 10 metres of any doorway or window.

‘Kick new law in the butt’

By Sue Segar Time of article published Jul 11, 2012

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Health Minister Aaron Motsoaledi has overstepped his powers with plans to clamp down on smoking.

That’s the opinion of the Law Review Project (LRP), and other roleplayers.

The Health Department’s draft regulations on tobacco control were draconian and unconstitutional, the LRP said on Tuesday.

The project’s spokesman, Tebogo Sewapa, said the fact that the draft laws were made by executive decree rather than through parliamentary legislation with transparent oversight was a direct violation of the constitutional requirement of the separation of powers between the executive, legislative and judicial authority.

The project argues that lawmaking should not be left to the executive.

It called on Motsoaledi to not proceed with the proposed regulations, and to refer them back to officials for fundamental reconsideration.

The Health Department published the draft regulations on the Tobacco Products Control Act on March 30 and invited the public to comment until the end of June. However, there will be no public debate or hearings on the proposed changes to the tobacco laws, leaving it up to the minister to decide which regulations to put in place.

If passed in their existing form, smoking will be banned in all public areas, including covered walkways, services areas, inside bars, on beaches and in restaurants.

Even smoking in the workplace may be prohibited.

Sewapa said: “Under sound basic principles of good law in a free society consenting adults should be allowed to determine their own conditions of interaction, and property owners have the right to determine conditions for entry, so long as no one violates the legitimate rights of others.”

Sewapa said attention needed to be drawn to the extent to which existing anti-smoking laws already diminished the rights and freedoms of smokers and non-smokers, employers and employees, and property owners.

“Our concern is that this proposal steps over the legitimate line of protection into the murky waters of authoritarianism,” said Sewapa.

The Tobacco Institute of Southern Africa has also described the regulations as excessively restrictive, and said Motsoaledi had acted beyond the powers given to him.

The Township Liquor Industry Association said the new laws would be impossible to implement. The Free Market Foundation has also criticised the proposals.

Political Bureau

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