In 2022, the Minister of Health introduced in the National Assembly the Tobacco Products and Electronic Delivery Systems Control Bill. The Bill is currently under consideration by the Portfolio Committee on Health of the National Assembly.

But the Bill is extensively flawed.

The Bill treats “vaping” of tobacco devices and nicotine delivery systems on the same basis as it treats conventional smoking of tobacco products. The Bill also treats the vaping of non-nicotine devices on the same basis as it treats the vaping of nicotine devices. They should be treated differently. The courts say that cases which are not the same should be treated differently.

The Bill also envisages only one set of packaging-and-labelling regulations for (on the one hand) tobacco devices and nicotine delivery systems and nicotine-containing substances and products, and for (on the other hand) non-nicotine delivery systems and substances and products. These should all have different sets of packaging-and-labelling regulations, if any.

The Bill’s prohibitions against smoking in sundry specified places are unjustifiable intrusions into personal dignity, freedom, and privacy.

For example, the Bill prohibits smoking while standing under the roof of an otherwise open space, or while standing next to a wall abutting an otherwise open space.

The Bill prohibits smoking in a “workplace” even if only the person smoking ever works there.

The Bill prohibits smoking on the outdoor stoep or verandah of a private dwelling.

The Bill prohibits smoking in any place where a self-employed person works. It prohibits smoking in one’s own home or private workshop.

The Bill also prohibits smoking in cars. It prohibits anyone from smoking in his or her private vehicle if that person uses it during employment or work.

The Bill prohibits anyone from smoking in a private vehicle, even if the owner uses it merely to drive from home to work and back home after work. These are excessive intrusions into personal dignity, freedom, and privacy.

The Bill prohibits smoking anywhere in South Africa’s territorial waters. It prohibits smoking on the open deck of an ocean-going ship registered in any country.

Unconstitutional

 The Bill unconstitutionally delegates to the Minister the power to create offences for vague and unfettered reasons. It empowers the Minister to make regulations prohibiting smoking in any outdoor public place or workplace where smoking “may” pose a health hazard.

The Bill enables the Minister to prohibit smoking in any outdoor public place where smoking may pose a “fire” hazard. This is unnecessary. That sort of thing is already dealt with in legislation administered by the Minister of Forestry, Fisheries, and the Environment.

The Bill also authorises the Minister of Health to prohibit smoking in any outdoor public place where smoking may pose any “other” hazard.

This gives the Minister vague and unfettered powers to prohibit outdoor smoking for reasons that are not clearly aimed at a concern about health.

The Bill empowers the Minister to prohibit smoking in: “such other place where the Minister considers it appropriate” to prohibit smoking in order reduce or prevent public exposure to smoking. This gives the Minister power to prohibit smoking on any specious excuse.

The Bill gives persons in control of public places unfettered powers to prohibit smoking outdoors. This is wide enough to enable every municipality to prohibit smoking in and on all their public roads, pedestrian footpaths, public squares, parks, and beaches without exception.

The Bill unconstitutionally prohibits all advertising of all tobacco, nicotine, and non-nicotine smoking products. This blanket prohibition of advertising violates the fundamental right of everyone in South Africa to freedom of expression, which includes freedom to impart information.

The Constitutional Court has observed that freedom of expression is valuable for many reasons and that individuals need to be able to hear, form, and express opinions and views freely on a wide range of matters including contentious issues.

In 1995, the Supreme Court of Canada declared that the provisions of that country’s Tobacco Products Control Act prohibiting all advertising of tobacco products were an invalid limitation of the right to freedom of expression in the Canadian Charter of Rights and Freedoms.

The Bill unconstitutionally confers on the Minister plenary power to legislate product standards and ingredients. The Constitutional Court has ruled that Parliament cannot assign plenary legislative power to a minister. Parliament can only delegate limited regulatory authority.

Unfettered discretion

The Bill prohibits anyone from selling tobacco and smoking products to any place within “a prescribed distance” of premises providing education or training to a child. This gives the Minister unfettered discretion to prescribe any distance from a school, whether near or far. There should be clear parameters on the exercise of these powers, to prevent the Minister from prescribing unreasonably long distances.

The Bill prohibits sales of tobacco and smoking products to “any” place prescribed by the Minister by regulation. This gives the Minister unfettered discretion to prescribe any place whatsoever as a place to which sales of the products are prohibited.

The Bill prohibits the sale of tobacco and smoking products to consumers through postal or courier services or the internet, or by any other means as the Minister may prescribe by regulation: “in furtherance of the objectives of the Act”. The Minister may prescribe additional requirements applicable to the sale of tobacco and smoking products to “further the objectives of the Act”. These provisions are vague and do not properly define the scope of the Minister’s power to prescribe regulations.

In the same vein, the Minister may require a manufacturer or importer of tobacco and smoking products to submit any information “to further the objectives of this Act”.

The Bill (read with certain statutes regulating maximum fines for criminal offences) provides for the imposing of unduly severe criminal penalties for the offences created in the Bill.

For example, a person who is in control of a place where smoking is prohibited and who fails to ensure that nobody smokes in no-smoking area commits an offence and is liable on conviction to a fine of up to R200 000 or imprisonment for up to five years, or both.

Anyone who sells tobacco or smoking products to any places prescribed by the Minister by regulation commits an offence and is liable on conviction to a fine of up to R600 000 or imprisonment for up to 15 years, or both.

These maximum penalties are disproportionately harsh. The Bill of Rights declares that everyone has the right not to be treated or punished in a cruel or degrading way.

Excessive

The authorised penalties in the Bill are generally excessive. The Bill provides for six categories of punishment of increasing severity: A fine of up to R10 000 or imprisonment for up to three months (or both); a fine of up to R20 000 or imprisonment for up to six months (or both); a fine of up to R200 000 or imprisonment for up to five years (or both); a fine of up to R400 000 or imprisonment for up to ten years (or both); a fine of up to R600 000 or imprisonment for up to 15 years (or both); and a fine of up to R800 000 or imprisonment for up to 20 years (or both).

These punishments are unduly stringent. (Imprisonment for 15 years is the punishment for murder, and imprisonment for 20 years is the punishment for a second offence of murder.)

The Bill states that the National Health Act’s entry, search, and seizure provisions will apply. They empower officials to enter premises (including private dwellings), to inspect everything, and to seize material that may provide evidence of an offence.

Those entry, search and seizure provisions of the National Health Act give officials draconian powers: An occupant or other person present on the premises being searched must furnish information about the matter under investigation on request by the officials conducting the search; the officials may overcome resistance to the entry and search by using such force as is reasonably required including the breaking of a door or window of the premises; and they may exercise these powers without a warrant if there are reasonable grounds to believe that a warrant would be issued and that the delay in obtaining it would defeat the object.

(Absurdly, the National Health Act insists that any entry and search of premises in terms of the Act must be conducted with “strict regard” to decency and good order, including the rights of affected persons to dignity, freedom and security, and privacy.)

The Free Market Foundation has proposed amendments that require that the draconian provisions of the National Health Act should not apply to the Bill.

The Portfolio Committee on Health issued a media statement on 29 August stating that on the previous day the Committee concluded its public hearings on the Bill.

Oral presentations

The statement said that the public hearings provided an opportunity for stakeholders to make oral presentations on their written submissions.

Stakeholders who participated in the public hearings include tobacco industry stakeholders, members of the hospitality industry, professional associations, civil society organisations, researchers, academics, private companies, lobby groups, public health entities, statutory bodies, sector experts, political organisations, labour unions, and other interested stakeholders.

Prior to the public hearings, the committee embarked on an extensive public-participation process, which commenced with a call for written submissions on the Bill. The committee hosted public hearings between August 2023 and February 2025.

The committee received 1 113 oral submissions from the public during the hearings; 500 (44.9%) were in support of the Bill, 495 (44.5%) rejected the Bill, and 14 (1.3%) partially supported it.

The media statement indicates that the next step in the legislative process is that the Committee will call the Department of Health to respond to all issues raised by stakeholders and some raised by members of the committee.

Then the committee will adopt a motion of desirability, which will establish whether the committee is proceeding with the Bill or stopping and reporting to the National Assembly accordingly.

Gary Moore, a practising attorney for 30 years, is a Senior Associate of the Free Market Foundation.