Erasmus, Gerhard (Faculty of Law, University of Stellenbosh)
SUBMISSION TO THE PORTFOLIO COMMITTEE ON HEALTH THE TOBACCO PRODUCTS CONTROL AMENDMENT BILL BY PROF. GERHARD ERASMUS UNIV. OF STELLENBOSCH


A. INTRODUCTION
1.This submission deals with the proposed clause 3 of the Bill and some of its consequences. Clause 3 amends section 2 of the Principal Act.
2. Certain amendments to the Bill were added during the NCOP debate of

7 October 1998. The proposed new provision will now read:
"Section 2. Control over smoking of tobacco products -
(1) (a) The smoking of tobacco products in any public place is prohibited.
(b) Notwithstanding the provisions of subsection (1) (a), the Minister may by notice in the Gazette declare specified public places permissible smoking areas, subject to any conditions that may be specified in such notices.

(2) The Minister may at the request of any local authority, but subject to subsection (3), grant any or all of his or her powers contemplated in subsection (1) to such local authority.

(3) A power contemplated in subsection (1) shall not be granted to a local authority under subsection (2) in respect of-

(a) a public place owned by the State or which is occupied by officers or employees in the employment of the State; or
(b) such other public places or particular kinds of public places as the Minister may determine by notice in the Gazette.

(4) When a local authority issues regulations by virtue of subsection (2), it shall do so by notice in the Official Gazette.

(5) The Minister may issue regulations prescribing conditions to which the exercise of a power by local authority in terms of subsection (2) shall be subject.

(6) A local authority which has made regulations relating to the control of smoking in public places in terms of this Act shall have the power, duty and obligation to enforce the regulations in its area of jurisdiction.

(7) A local authority which has not made regulations relating to the control of smoking in public places in terms of this Act shall have the power, duty and obligation to enforce any national regulations in connection therewith in its area of jurisdiction."

Public Place is defined as:

"'Public place' means any indoor or enclosed area which is open to the public or any part of the public and includes a workplace and a public conveyance."

4. Workplace is defined as:
(i) "any indoor or enclosed area in which employees perform the duties of their employment; and
(ii) includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by' such employees during the course of their employment."

5. This submission wants to draw attention to the following problematical aspects of the Bill:

(i) "Public places" is a functional area of exclusive provincial legislative competence under Schedule 5 of the Constitution. The national legislature may only intervene" in such areas in terms of the procedure provided for in section 44(2) of the Constitution. This Bill does not comply with section 44(2).

(ii) Private behaviour is criminalized in a manner which violates individual freedom as protected by section 12(1) (a) of the Constitution.

(iii) The penalty clause provides for severe, minimum sentences and excludes the discretion of the courts to mete out punishment proportionate to the offence and suitable for the individual case.

B. NATIONAL LEGISLATION WITH RESPECT TO SCHEDULE 5 MATTERS
1. This Bill is before Parliament as national legislation to be adopted in terms of the procedure provided for in section 76 of the Constitution.

2. Clause 3 contains the following substantive provisions:

(i) it prohibits smoking in 'any public place;

(ii) it provides for ministerial notices declaring specified "public places" permissible smoking areas;

(iii) it provides for the laying down of conditions pertaining to smoking in public places designated as permissible smoking areas;

(iv) it deals with the role of local government with respect to "the control of smoking in public places

3. "Public places" is listed in Part B of Schedule 5 of the Constitution. This Schedule deals with "Functional Areas of Exclusive Provincial Legislative Competence".

4. The only manner in which Parliament can legislate with respect to these functional areas, is in terms of section 44(2) of the Constitution. It reads:

"parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary -

(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of services;
or
(e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole."

This procedure is not followed in the present instance. The consequence must be constitutional invalidity. The Constitutional Court has ruled before that procedural requirements appearing in the Constitution and dealing with the adoption of legislation ~ are not merely directory. They prescribe how laws are to be made and changed and are part of a scheme ... (Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (10 BCLR 1289 (CC) par 62).

6. Section 2 of the Constitution, a founding provision", confirms the consequence of constitutional invalidity of any conduct inconsistent with the Constitution:

"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

7. Parliament has no "automatic right" to legislate on Schedule 5 matters. It is not as if it can adopt legislation of this kind and then argue that it remains valid if provinces or local government do not object to it. It is not for the provinces or local government first to complain about the non-observance of section 44(2) or for them to put the national legislature on terms before the question of constitutional invalidity arises. The Constitutional Court made this quite clear during the first Certification Judgment:

"In the case of the NT [New Text, i.e. the present Constitution], there is no such automatic right by Parliament. It is expressly precluded by NT 44 (1)(a)(ii) from passing legislation within the functional areas listed in NT sch 5 and in order to overcome that disability, it must invoke the special power of intervention set out in NT 44(2)." (1996 (10) BCLR 1253 (CC) par 465).

8. No effort is made to bring the legislation of clause 3 within the requirements of section 44(2) of the Constitution, despite the rather clear guidelines on how that has to be done.

9. The only manner in which clause 3 can be saved will be to re-enact it and then to do so in a manner that will follow the procedure of section
44(2).

C. THE CRIMINALIZATION OF PRIVATE BEHAVIOUR
1. The Bill creates, in rather sweeping terms, the following offence in clause 3(1)(a): "The smoking of tobacco products in any public place is prohibited."

2. This criminalizes certain human conduct, which, in the words of the Preamble is "a widely accepted practice among adults."

3. The fundamental human right of individual freedom, as protected in section 12 of the Constitution, is at stake here. This section protects a right to freedom" and a separate right to 'security of the person". Section 12(1)(a) provides:

"Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause".

4. Individual freedom has been defined in the Constitutional Court as follows:

'I would, at this stage, define the right to freedom negatively as the right of individuals not to have 'obstacles to possible choices and activities' placed in their way by ... the State." (per Ackerman J in Ferreira v Levin 1996 (1) BCLR (CC) par. 54)

5. The inclusion of the just cause requirement in section 12(l)(a) gives a clear constitutional mandate for a substantive enquiry into deprivations of freedom. In other words a deprivation of freedom must be for reasons which are just in their substance. In the Constitutional Court this aspect has been explained as follows:

[I]n certain circumstances, even when fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable." Bernsten V Bester 1996 BCLR 449 (CC) per O'Regan J.

6. The essence and substance of the 'just cause" principle is that there must be some compelling reason for certain conduct to be criminalized. The status quo is that a great number of people use tobacco products and they do so in "public places". This conduct is now criminalized. The State, by creating a statutory offence, creates an "obstacle to possible choices and activities."

7. The State will have to justify its decision to criminalize this form of human conduct. No such justification has been given. As long as this just cause" requirement has not been satisfied, the violation of individual freedom occurring here remains constitutionally unacceptable.

8. The second objection to the offence created in terms of Clause 3(1) is that it is too vague. One of the principal values underlying criminal law is that of legality and is part of the rule of law, found in section 1 of the Constitution. This principle requires that crimes and their punishment must be described in clear and comprehensible language. The legislature, when proscribing conduct under pain of punishment, ought to describe that which it prohibits in language so clear that persons of ordinary intelligence need not guess or speculate as to what is forbidden.

9. The term "public places" is especially vague. The definition in the Bill creates more questions than answers and does not satisfy the requirements of "particular, precise and clear description of the prohibition", as one writer has put it.

10. The third objection to Clause 3(1) is that this offence and the severe penalties amount to over-criminalization and intimidation of the public. The criminal sanction is the law's ultimate threat and should be reserved for that purpose.

D. OFFENCES AND PENALTIES
1. Clause 9 prescribes minimum fines in two of the three instances. This takes away the discretion of the Courts and may result in grossly disproportionate punishment.

2. Proportionality, in the words of the Constitutiona1 Court, is 'an ingredient to be taken into account in deciding whether a Penalty is cruel inhuman or degrading (S v Makwanyane, 1995 (6) BCLR 665 par 94). Our courts have also warned against "excessive" Punishment; it violates the Proportionality requirement.

3. Punishment should fit the individual case and Person concerned. The Principle of "individualisation" is an important sentencing principle of
South African law. Without a discretion for the courts, "harsh and inequitable results inevitably follow", as the Appellate Division once observed.

E. CONCLUSION
The Preamble to this Bill claims to "align the health system with the democratic values of the Constitution and to enhance and protect the fundamental rights of citizens.." This objective is fully supported, but cannot be achieved in a selective manner. The rights of all citizens and all constitutional values and Principles should be respected. Other constitutional values such as the rule of law, the supremacy of the Constitution, individual freedom and constitutional requirements with respect to legislative procedures are equally valid and worthy of Protection. Their recognition and protection are not sufficiently reflected in this Bill. Its laudable objectives can only be met if a balanced and reasonable approach is adopted.

PROF. GERHARD ERASMUS