Smokers' rights in ashes

By Drum Digital
20 June 2012

The Supreme Court of Appeal found on Wednesday that the health hazards of smoking outweigh the interests of smokers as a group.

The SCA dismissed an appeal against an order by the North Gauteng High Court brought by British American Tobacco of South Africa (Batsa).

The appeal concerned the proper interpretation of section 3(1) (a) of the Tobacco Products Control Act, as amended by the Tobacco Products Amendment Act, which relates to a prohibition on the promotion and advertising of tobacco products.

Batsa approached the High Court for a proper interpretation of section three of the act.

It argued that in terms of section 16 of the Constitution, the impugned prohibition limits the company's right to engage in commercial expression and the right to freedom of expression of tobacco consumers.

Batsa further argued tobacco consumers were denied the right to receive information concerning tobacco products.

It sought a High Court order that the impugned provision did not apply to one-to-one communications between tobacco manufacturers, importers, wholesalers and retailers, and consenting adult tobacco consumers.

The SCA said the appeal was whether the limitations were reasonable and justifiable in an open democratic society. This included the nature and extent of the limitations as required by section 36 of the Constitution.

The court held it had to consider the rights of smokers to receive information concerning the tobacco product and the government's obligation to take steps to protect its citizens from the hazardous and damaging effects of tobacco.

It found there were powerful public health considerations for a ban on advertising and promoting tobacco products, and that the seriousness of the hazards of smoking far outweighed the interests of smokers as a group.

The SCA further held that South Africa also had international law obligations to ban tobacco advertising and promotion.

The judgment found the prohibition on advertising and promotion of tobacco products was reasonable and justifiable as required by the Constitution.

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