Draft regulations on smoking in public may be unconstitutional because the regulations were being made by executive decree, rather than through Parliament, the Law Review Project (LRP) said on Tuesday.
“This amounts to a direct violation of the constitutional requirement of separation of powers between the executive, legislative, and judicial authority,” spokesman Tebogo Sewapa said in a statement.
The LRP, a legal policy institute, submitted objections to the health department's proposals to ban all smoking in indoor public areas, and in many outdoor areas.
Sewapa said it was inappropriate for the executive to make the regulations, since it did not comply with provisions in section 195 of the Constitution, regarding required public participation and consultation.
“Substantive laws should be made subject to these and other Constitutional checks and balances necessary for quality of law purposes,” he said.
The LRP believed the draft regulations showed there was no longer a legitimate desire to defend the rights of non-smokers, but rather act as a draconian intervention against those of smokers.
The health department should rely on common laws governing nuisance, property rights, freedom of association, and contracts.
“Smoking is a vice, not a crime, just as it is not a criminal offence to be obese, have reckless recreation, or be dishonest without committing fraud,” he said.
The LRP questioned the regulations' drafting, since it appeared many provisions were either inappropriate or inappropriately formulated.
Sewapa urged Health Minister Aaron Motsoaledi not to proceed with the regulations, and refer them back for reconsideration.
The proposed 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. – Sapa