Landmark ruling on smoking

2001-07-19 22:49

Philip de Bruin

In a landmark judgment, a South African High Court has ruled that the parents and family of a one-year-old boy, as well as their friends, may not smoke in his presence.

The ruling states that no one may smoke in a vehicle, or in a room of a house where the child is present.

The interim court order by Judge-President MDJ Steenkamp, granted in the Northern Cape High Court in Kimberley, "sends a very clear message that a child's constitutional rights to live in a clean and unpolluted environment far exceed an adult's right to smoke - even where new smoking laws which forbid smoking do not hold force".

Professor Jacqueline Heaton, a lecturer in Family Law at Unisa, has described Judge Steenkamp's ruling yesterday as important and far-reaching. "The new, strict anti-smoking laws clearly have little to do with the ruling. What it does reflect is a dramatic extension of the rights of the child as spelled out in the Constitution.

"On the one hand the Constitution protects the right of a child to grow up in an unpolluted environment. Set against that is the constitutional right of adults generally - and in this instance the child's mother and her friends - to smoke in places not prohibited by law.

Scales tipped in favour of child

"As supreme guardian of all minor children, the court clearly has tipped the scales in favour of the child, placing a child's rights above those of an adult.

"As such, the ruling is a victory for children's rights. One can expect that scores of similar applications will now come before the courts," Heaton says.

The case before Judge Steenkamp involves a court battle between an unmarried father and his girlfriend over the care and handling of their one-year-old son. The couple are now separated.

The father has alleged in papers before the court that at times when he is indeed allowed to see his child since their separation, the child is frequently in a smoke-filled room.

The names of both parents have been withheld to protect the identity of the child.

Judge Steenkamp makes several provisions in the interim court order, among these is that the child may not be taken out of South Africa. The judge also includes a paragraph stating that the mother must ensure the child is not in a room or a vehicle in which there is smoking, and he must sleep in a room where the walls reach the ceiling, and there is a window which can be opened and closed.

The judge goes even further, ordering that the father, or anyone he nominates, may send a building inspector to verify that the conditions comply with the court order.

The judge has postponed the case to August 10, when final submissions by both parents will be heard concerning the care and management of the child.

- Beeld