Tobacco Products Control Amendment Bill [B117F-98]: reconsideration

Meeting report

HEALTH PORTFOLIO COMMITTEE
17 February 1999
TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B117F-98]: RECONSIDERATION

Documents handed out
Letter from President to Speaker regarding his reservations about the Bill (see end of minutes: Appendix 1)
List of dates of future meetings of Health Portfolio Committee (see end of minutes: Appendix 2)
HIV Pledge by parliamentarians
National Assembly Rules No149 - 162 (Procedure for consideration of bills)

Report emanating from the meeting:
Outstanding Bills at Expiry of Term of House

SUMMARY
Both chairs had been advised that reconsideration of the 'Tobacco Bill' needed to be concluded within this parliamentary session. Opposition parties complained of "rushing-the-bill-through" tactics. Discussion was heated. Each party was tasked with preparing its party's proposed amendments to the Bill before the committee next meets on 22 February 1999.

MINUTES
Dr Nkomo explained that due to a very tight parliamentary schedule this session the Health Portfolio Committee has combined with the NCOP committee to consider the President's reservations about two clauses in the Tobacco Products Control Amendment Bill; hence the joint chairpersons. The letter from the President had been circulated to members. He stressed that this Bill must be dealt with this session because it must be the same President who returns the Bill and receives the amendments.

Legal adviser Anton Meyer said he was satisfied that it was not unconstitutional to prohibit smoking in public places nor to prohibit advertising but it may impinge on fundamental rights to prohibit financial activity by the tobacco industry. It is also necessary to define 'organised activity' and 'public place'. These are not procedural defects but issues of substance.

Dr S.J. Gous, NNP, pointed out to the committee that he had warned them that the Bill would be found to be unconstitutional and warned that there are other issues 'that will come back to haunt us'. He queried the rush to get the Bill through and the explanation about the need for the same President to accept amendments. He also asked if there was time to have public participation.

Dr R. Rabinowitz, IFP, congratulated the President for his wisdom in sending the Bill back but expressed concern about procedure. She complained that the President's letter had only just reached them and that they could not rush this process.

Dr Gous accused the chair of trying to use the committee like a rubber stamp and of tying them up during the election campaign.

The discussion became more and more heated. ANC committee members challenged the opposition's stand. The second chairperson, Dr Kwele from the NCOP intervened to cool the atmosphere.

Opposition members then complained that the Health Committee had been scheduled with Monday 9 a.m. meetings and this made it difficult for many members living away from Cape Town to attend on time. The Chair referred them to their own Chief Whips who were party to the time-tabling.

The Chairperson asked all members to join in the HIV Pledge and to fax his office if they agreed.

The next meeting will be held on 22 February. The Chair appealed to all parties to hand in their proposed amendments to the Bill.

Appendix 1:
22 January 1999

Dear Madam Speaker

REFERRAL OF BILL TO PARLIAMENT IN TERMS OF SECTION 79(1) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

As you are aware, if I have reservations concerning the constitutionality of a Bill submitted to me for my assent, I am required to refer the Bill back to the National Assembly for its reconsideration. In respect of the aspects referred to below and for the reasons set out I am referring herewith the Tobacco Products Control Amendment Bill, 1998 to the National Assembly for their reconsideration and, if they believe it appropriate, to deal with in accordance with the joint rules and procedures governing such Bills.

In regard to the Tobacco Products Control Amendment Bill, I would want to make it clear that I am satisfied that the purposes and objectives of the Bill fall within the parameters of constitutionality. In other words, it is not unconstitutional in principle to prohibit the advertising of smoking and to prohibit smoking in public places for the reasons set out in the preamble. Accordingly it is not necessary for the National Assembly to reconsider the purposes of the Bill.

I am advised however that where legislation may impinge on fundamental rights, the terms thereof should not be over broad. It should not limit rights in areas beyond or unconnected to the purposes of the Bill. In this regard I am advised that section 3(2) of the Bill, in prohibiting the organisation, or promotion of, or financial assistance to an organised activity' by tobacco-related enterprises, fails to define 'organised activity'. The very wide ambit of this term would mean that activities unrelated to the purposes of the Bill arid protected by the Bill of Fundamental Rights, especially freedom of association, would be proscribed. This defect may be cured, I am advised, by a more precise definition of the 'organised activities' contemplated by the Bill.

I should mention that, as I am advised, the ministerial power to limit the ambit of the Bill, once assented to. to deal with 'unintended' consequences does not protect the Act from constitutional challenge on the above grounds.

I would also draw attention to the possible and unintended consequence of extending the definition of 'public place' by section 2(k) to possibly include private places including a dwelling, apartment, flat or residence in which an employee performs his or her duties. If this is not the intention of the Bill, it may also be considered over broad unless such private places are exempted. I am advised that a ministerial power to extend the prohibition to categories of private residences the nature of which warrants their treatment as a public place would, however, be connected to the purposes of the Act.

I would want to stress that Bills approved by Parliament are not lightly referred back to the National Assembly. Section 79 does however allow a special opportunity for any Bill so approved to be reconsidered for the purpose of placing it on its firmest constitutional foundation. It is of course up to Parliament to decide whether such concerns need be dealt with and how.

Yours sincerely
N R MANDELA

Appendix 2:
IMPORTANT DATES TO DIARISE: PORTFOLIO COMMITTEE ON HEALTH

TOBACCO PRODUCTS A/B
17 February:
Portfolio Committee meeting to discuss the process re: Tobacco Bill. and the AIDS pledge.

22 February:
Deliberations on Tobacco Products A/B- parties to hand in amendments

23 February:
Deliberations- informal stage.

24 February:
Formal stage- voting.

3 March:
Second reading Debate of the Tobacco Products Control A/B

BUDGET HEARINGS - MARCH 1999
1 March
Hearings to commence with the National Department of Health

2 March
Hearings to continue with the Provincial departments.

3 March
Hearings to with the Provincial Standing Committee's.

12 March
Health Budget Vote (15)

HUMAN RESOURCE POLICIES OF MEDICAL SCHOOLS
16 March
Meeting with Deans Of Medical Schools (4 Universities)

17 March
Meeting with Deans continue (4 Universities)