London - A new law comes into force in Scotland on Monday banning smoking in cars when children are present, as part of the government's plans for a "tobacco-free generation".
Under the law smokers face a 100 ($127 119 euros) on-the-spot fine if caught lighting up in a private vehicle where under-18s are present.
In South Africa, according Section 2(1)(a)(iii) of the Tobacco Products Control Act, 1993, as amended prescribes that: “No person may smoke any tobacco product in any motor vehicle when a child under the age of 12 years is present in that vehicle”.
Section 7(4) of the Act prescribes that “Any person who contravenes or fails to comply with section 2(1) shall be guilty of an offence and liable on conviction to a fine not exceeding R500”.
But how can we implement this when basic traffic laws are not even adhered?
Justice Project South Africa chairman Howard Dembovsky says: "It's indeed a pity when people (and some organisations) state that something is “against the law” and then fail to cite the specific law and provision in question since it is a common practice to say that “this or that is against the law” where in fact it is not. However in this particular case, it is completely true to say that “it is illegal to smoke in a motor vehicle, of which a “car” is just one of those motor vehicles, when a child under the age of 12 years is present in that vehicle.
"This law, like most laws which require the prosecution of the offender in terms of offences prescribed in such legislation would require that offenders are prosecuted in terms of the Criminal Procedure Act."
While the fine may not sound too drastic to most people, says Dembovsky, it must be remembered that along with a criminal conviction goes a criminal record and the requisite consequences which follow the imposition of a criminal record – like the inability to get a travel visa and increasingly, the inability to gain employment, etc.
"While I would not go so far as to say that parents should not be taken to task for smoking in a motor vehicle whilst children are present, it stands to reason that it may well prove to be even more detrimental to a child to have their parent or parents convicted of a criminal offence than for them to be subjected to “passive smoking”.
"Enforcing this law therefore carries with it some pretty frightening “unintended consequences” and I would hope that enforcement authorities would recognise this and exercise caution in enforcing its provisions. One way of doing so would be to issue notices in terms of Section 341 of the Criminal Procedure Act, which do not cause the automatic imposition of a criminal record upon payment of the fine."
Parent24 editor Sophia Swanepoel says: I’m astonished that nothing is being made of people smoking in the car when others, especially children, are present, and often with closed windows. We have laws against this, we have research showing how terribly bad second-hand smoke is. I understand addiction but I always urge smoking parents to try and quit, and when they do have to smoke, to do so outside with no kids around. I wonder whether law enforcement ever fines parents for smoking in their cars?
Dangerous chemical levels
In Scotland, the penalty increases up to 1000 if a case goes to court, under a bill passed unanimously in Scottish Parliament in December 2016.
The new measure was introduced as part of the Scottish government's plans to lower the smoking rate to under 5% by 2034.
Aileen Campbell, Scotland's public health minister, said: "It's simply not safe to smoke when a child is in the car. Dangerous levels of chemicals can build up, even on short journeys."
Breathing second hand smoke is linked to asthma, respiratory infections, lung cancer and coronary heart disease, according to the World Health Organization.
The law has been welcomed by health charities, with Ash Scotland saying it sends a clear message that children should grow up in a smoke-free environment.
WHO chief executive Sheila Duffy said: "We know from speaking to parents that they want to protect their children from tobacco smoke, but often don't know enough about how smoke is harmful and lingers in the air even after you can't see or smell it."
But the move has been criticised by smokers' group Forest, whose director Simon Clark described the law as "patronising and unnecessary".
"Very few adults smoke in cars with children. Smokers know it's inconsiderate and the overwhelming majority don't do it.
"So few people smoke when there's a child in the car it will be like looking for a needle in a haystack," he said.
The law banning smoking in vehicles carrying children came into force in England and Wales in October 2015.
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