Smoking regulations may be unlawful - LRP

2012-07-10 11:05

Johannesburg - 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," spokesperson 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 recreations, 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 10m of any doorway or window.

  • mengelbrecht1 - 2012-07-10 11:11

    Next on the list is having a beer at Rugby or Cricket matches or in your home!!

      merkwaardig.obskuur - 2012-07-10 11:51

      Passive smoking kills. Smokers do not have a constitutional right to kill me. I have a constitutional right to healthy air.

      jason.children - 2012-07-10 12:34

      @Merk the only people giving thumbs down are smoker lol! As an ex smoker I dont mind someone smoking near me, it really doesnt bother me! What does though is a public place like a Bar that doesnt have enough ventilation and you can see the thick smoke in the air. That is going too far. Besides I cant believe with all the medical research pointing to the dangers of smoking that someone would still have such little respect for those around them that chose not to smoke! lol end of rant!

      art5SA - 2012-07-10 12:52

      The Cigarette SMOKES.... you just the SUCKER AT THE END! LOL!

      customdesign - 2012-07-10 13:40

      Merk and Jason, use your constitutional right to not hang around smokers. There are smoking areas for that purpose- if you don't like smoke don't go into those areas. And if people are smoking at a bar, go to a different one where they don't smoke- its not rocket science.

      neil.vanheerden.39 - 2012-07-10 13:41

      They should rather put this effort into getting some text books into limpopo but heck no, lets p*ss off people contributing to this f up country we unfortunately have to call home thanks to the f up ANC.

      neil.vanheerden.39 - 2012-07-10 13:44

      @Merkwaardig: You also do not have the constitutional right to getting a p-KLAP which I will gladly give you should you even think of saying something along those lines when I have a smoke where I am allowed to smoke. BTW, then they should ban all cars and braai's because that also kills. Klim van jou oudedoos band wagon af, verkoop jou kar en kry maar 'n donkie, dis mos meer 'environmentally friendly" jou simpel hippy!

      dewaldmontgomery - 2012-07-10 14:42

      From a legal point of view, passive smoking harms and kills. End of story. Smoking within a few metres of a public shopping mall, for example, is in violation of others' constitutional rights, whether you like it or not. Smoking in your car with your young child in the car, violates your child's constitutional right, whether you like it or not. We're not talking about a non smoker going into a smoker's bar. We're talking about IN PUBLIC or where a smoker is LIKELY to affect the constitutional rights of non smokers without them having any say or choice in the matter. Drinking, driving and braaiing CANNOT affect YOUR constitutional rights, unless some ACCIDENT happens, some acts NEGLIGENTLY or someone DELIBERATELY runs you over or sets you ablaze etc. Back to the topic, the fact remains that the regulations themselves are ALSO unconstitutional, since the proper procedures have not been followed.

      Johan - 2012-07-10 14:50 what you are saying is that the fumes from cars and trucks is ok and can't harm you and you will still be able to have clean air outside a busy shopping centre...interesting so people that gas themself in a car is using a pack of 20 Kent White - 2012-07-11 15:50

      @MerkwaardigAnd i have a constutional right to smoke, if you don't like smoke move away from the smoker, We allready smoke outside malls and buildings. More people are harmed by alchol than with smoking, Get a life

      mike.boylen - 2012-08-02 18:21

      The first thing I noticed when I stopped smoking was how bad Durban smells. I'm sure the pollution does a lot more harm than cigarettes.

  • peter.jefferies.90 - 2012-07-10 11:19

    Minister Aaron Motsoaledi stop making this a personal thing you idiot!!!! Worry about more serious things than this!

      jason.children - 2012-07-10 12:40

      Cancer is pretty serious Peter, ask someone who has had it!

      Johan - 2012-07-10 13:12

      Yip it is serious but are you trying to say that al smokers die of cancer or all people that come into contact with smokers die of cancer? Look I don’t say that smoking cannot or do not cause cancer. What I am saying is that not all smoker’s get cancer and not all second hand smokers get cancer. I am saying is that not everybody that cross the road gets killed by a bus but if you are mend to get killed by a bus it will drive into your living room if you never get near a road

      jason.children - 2012-07-10 14:03

      @Johan, I didn't say all smoker get cancer, nor did i say all second hand smokers get cancer! But the risks are there, so as a non smoker SURELY I have the right to not breath it in!

      Johan - 2012-07-10 14:22

      Jason I can’t agree more about your right to have clean air. But fighting smokers about clean air with all the cars, trucks and factories around seems to me a bit hypocritical. When will all you non-smokers start to complain about the air pollution from cars, trucks, planes and factories? Is it that you make use of these things that it is ok?

      jason.children - 2012-07-10 15:35

      @Johan, we do complain! But i drive a car a culprit! The fact is this isnt about cars, this is about smokers and my right as a non smoker not to have to smell the fowl stench of the smoke you blow out that has done a turn around your lungs. LOL dude i was a smoker for 19-22 years and when i was i never gave a second thought to what those around me thought. now that i dont smoke I smell everything, smokers breath, the smell of a cigarette is shocking! besides the gross factor its something that should be controlled a little more. Im not saying ban it, im saying ban it in public places!

      Johan - 2012-07-10 16:10

      Ahh ok it is the smell not the killing of people with my second hand smoke....Ok then I can agree with you it stinks. But then again so does public toilets, your breath when you drink and the old man that farts infront of me in the shop...ban then too or complain about it

  • vanbredab - 2012-07-10 11:59

    So they want to arrest half of the South African population, use the entire police force to maintain this law that is rediculous to maintain. Allowing drug dealers and murderers to remain untouched while the police chase smokers around every corner and even those smoking within thier own homes who want to smoke on thier own private property a real intelligent thought.

  • Melinda - 2012-07-10 12:04


  • andrew.whale.39 - 2012-07-10 12:04

    Can we ban pregnancy as well? It is, after all, the single highest death creator we have. This whole argument is a waste of time when compared to the rest of the issues we as South Africans face. If these laws pass, it sets a precedent to ban lifestyle choices on a broader scale. We're slowing eroding freedom of choice through moral intolerance. But who cares about the consequences when one group, alone, stands vindicated. It's disgraceful.

      vanbredab - 2012-07-10 12:09

      soo true we giving up all our freedoms allowing our actions to become dictated

  • Jandl Reevo Reeves - 2012-07-10 12:10

    I'm not a smoker but I think it's absolutely ludicrous to think that this new law if ever passed will ever work.impose stricter laws but with theses new ones you may as well stop south africans smoking all together.bloody idiot!!! Shyt for brains

  • rutin.martin.menge - 2012-07-10 12:19

    while we are at it, why not ban any car that pollutes the air? i.e. all ICE cars without working catalytic converters

      Cassandra Eileen Olivier - 2012-07-10 12:35

      It has been proven that you more likely to get lung cancer from the pollution in the factory's and the expensive cars people drive

      badballie - 2012-07-10 13:48

      catalytic converters will only reduce the pollution not stop it. but of course we know that this won't happen governments have clearly shown that they will only act in the interests of its citizens as long as it does not affect their income.

  • ilona.davids.5 - 2012-07-10 12:28

    Bunch of idiots get the bigger picture right and I will conform with smoking regulations.

      jason.children - 2012-07-10 13:08

      And in the meantime screw all the non smokers around you right???

  • sheugnet - 2012-07-10 13:12

    So if criminalizing smoking is the plan, the next thing will be de-criminalising theft and murder? Drinking is far worse for your health(and everyone's around you - eg family break-ups, drunk driving, sclerosis of the liver, etc) So my opinion is to get your idiotic priorities right and start with what's REALLY wrong with this country - crime rate is out of control - government corruption also out of control - if it's going to be each man for himself, then let it be each man for himself and stop picking on the smokers - they're the LEAST of our worries!!!

  • hugh.olphart - 2012-07-10 13:19

    SARS made over R2Bill with the last tax increase on cigarettes, but they will make stupid baning rules. Ostracize and criminalise its citizens etc but still have their hand out for their cut. Worse then drug dealers and pimps. To all the bunny huggers, I dont want to smell your cars exhaust poisons,or listen to your noisy kids, so go do the world a favour get sterilized and get a bicycle.

  • Genesistt - 2012-07-10 13:19

    @Merkwaardig, yes, you have a right to healthy air. Too bad it's polluted by exhaust fumes from cars and toxic cast off from factories, amongst other things. I really don't think that the cigarette smoke in the air is going to kill you. It will be all the other (much more toxic) filth in the air. And just for the record, I am a non-smoker.

      alexia.katsiginis - 2012-07-12 00:53

      Yes, we all like Al Gore and agree that car exhausts add to global warming and that is a matter that needs to be addressed, however, ignorantly ignoring a problem because there are more urgent ones will lead to chaos. Quite honestly it really doesn't matter whether or not you believe that cigarette smoke poses a risk to our health: "More deaths are caused each year by tobacco use than by all deaths from human immunodeficiency virus (HIV), illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined." -CDC "One in six deaths caused by smoking." -NHS: The Information Centre for health and social care However, do feel free to contact the CDC and NHS to inform them of your groundbreaking opinion.

  • vlarismam - 2012-07-10 13:21

    STOP hounding the end user! BAN growing tobacco (plant hemp instead); BAN the manufacturing of tobacco products (process HEMP into paper; fabric; building materials instead); BAN the sale of tobacco products (SEE the Government collapse!!)

  • Dawn Campbell Gibson - 2012-07-10 13:45

    jacques - what year are you in??? I think its been over 20 years since people stopped smoking in theatres. you must still be watching Bud spencer and Terrance Hill movies or is it Charlie Chaplin? Grow the F up!

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