The writer says the proposed new smoking laws are unconstitutional. File image: IOL.
THE DEPARTMENT of Health’s proposed measures to tighten smoking regulations under the Tobacco Products Control Act are excessive and infringe disproportionately on the rights of individuals and private property owners. They are unconstitutional and have damaging economic implications.

The regulations, if approved by the cabinet, will see an effective ban on smoking in any public place and will make the dedicated smoking areas in public establishments - required by existing regulations - obsolete.

Smoking in any building, outdoor venue, public or private beach, outdoor drinking or eating area, park, walkway, parking area or within 10m of any doorway or window will be prohibited through these regulations, effectively limiting the places where people can smoke to inside their homes or cars.

Of concern is the impact of the regulations on businesses, especially within the hospitality industry, incorporating restaurants, bars, nightclubs and casinos. No provision is made for smoking establishments, which means that if the regulations are passed into law, establishments that cater to smokers only will be banned and put out of business.

The Free Market Foundation raises concerns about what are deemed to be acceptable limits for the government to impose on the conduct of its citizens.

Two criteria must be satisfied in order to establish that the limitation of a right is reasonable and demonstrably justified in a free and democratic society. The first relates to the objective or purpose of the limitation, and the second to the aspect of proportionality. The objective must be sufficiently substantial and important to warrant overriding a constitutionally protected right. The proportionality test requires that the means chosen to limit the right are reasonable and demonstrably justified.

When it comes to the effect these measures would have on private business, the prohibition of indoor smoking is a disproportionate interference with property rights. The Bill of Rights states that no one may be deprived of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property. Dictating how a private property owner may conduct his business usurps his rights over that property.

We should not lose perspective on the question of how restrictive a society we want to create. How far do we want to allow the government to trespass on our constitutional rights and reduce individual autonomy, especially to the extent of controlling what can be perceived as self-destructive behaviour? How can we allow laws that will undoubtedly harm our country’s economy by putting people out of business and make our unemployment situation even worse?

Leon Louw

Free Market Foundation executive director