Tobacco Products Control Amendment Bill [B117G-98]

SOCIAL SERVICES SELECT COMMITTEE
3 March 1999
TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B117G-98]

Documents handed out
Letter to Speaker from President Mandela (attached to the end of the minutes)
Portfolio Committee Amendments to Tobacco Products Control Amendment Bill [B117G-98] (see appendix 2)

SUMMARY
The committee considered the proposed amendments to the Tobacco Products Control Amendment Bill [B117G-98]. Finality could not be reached as opposition parties challenged the definitions, especially for 'enclosed area' and 'public place'. The chairperson urged delegates to consult with their Provinces and come prepared to vote at the next meeting on 17 March.

MINUTES
The Chairperson, Dr Cwele said that the Provinces needed input on the Tobacco Bill. He hoped that members would familiarise themselves with this bill and the three Welfare bills: Probation Services Amendment Bill, Child Care Amendment Bill and Prevention and Treatment of Drug Dependency Bill. At the next meeting on the 17 March, the Tobacco Bill amendments would have to be dealt with and finalised. The National Assembly was debating its amendments to the Tobacco Bill that afternoon. He requested proposed amendments by end of the following week.

With reference to the Tobacco Bill, Mr Ackerman (NP) asked what is an 'enclosed area'. Could it include the Kruger National Park which is also enclosed? He also wanted to know if your house becomes a workplace when you employ a secretary from home. And when children run a cafe on their front lawn does the house become a 'public place'?

Mr Makoela (ANC) said that these definitions had been extensively argued and explained at previous meetings. He asked, "How far can we go with definitions? Would you argue that 'corridor' could include the Mozambique Corridor?"

The Chairperson felt that the courts will have to interpret some of these terms.

A legal advisor was then called in at short notice. He was told that the committee members needed to know the answers to such questions before they go to the Provinces. What is meant by 'private place' and 'enclosed area'. What about 100 workers in an enclosed brickyard?

The legal advisor felt that the courts would look at the word 'indoor' in conjunction with 'enclosed space'. They would ask what is the ordinary meaning of 'enclosed'.' They would not interpret it in an absurd manner - but a brickyard may be one.

Other questions asked were whether the Labour Relations Act or the Tobacco Act would take precedence; it was maintained that the 'Private Dwelling' definition was unenforceable as it was doubtful one's children would take one to court for smoking.

The Chairperson explained that they must confine themselves to the terms raised in the President's letter, not to the whole bill. "If you reject these amendments, the Bill will have to go to mediation". He again appealed to the Provinces to consider the amendments before the end of the following week, 12 March.

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, I 998 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

The amendments agreed to by this committee are:
AMENDMENTS AGREED TO
TOBACCO PRODUCTS CONTROL AMENDMENT BILL
[B 117G—98]

CLAUSE 1
1. On page 4, after line 37, to insert the following paragraphs:
(g) by the insertion after the definition of ‘‘officer’’ of the following definition:
‘‘ ‘organised activity’—
(a) means any activity or event—
(i) which the public attends or participates in;
(ii) which is organised for the purposes of entertainment, sport or recreation or for educational
or cultural purposes; and
(iii) where a tobacco product, or brand name, trade mark, logo or company name in relation to a
tobacco product, is used in the name of orportrayal of the activity or event; but
(b) excludes any private activity or event arranged by a manufacturer, importer, distributor or retailer of a
tobacco product where only its shareholders or its employees or their spouses or partners attend;’’;
(h) by the insertion after the definition of ‘‘prescribe’’ of the following definition:
‘‘ ‘private dwelling’ means any part of—
(a) any room or apartment of a building or structure which is occupied as a residence; or
(b) any building or structure or outdoor living area which is accessory to, and used wholly or principally for,
residential purposes;’’;
2. On page 6, from line 3, to omit the definition of ‘‘workplace’’ and to substitute:
‘‘ ‘workplace’—
(a) means any indoor or enclosed area in which employees perform the duties of their employment; and
(b) includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment; but
(c) excludes any private dwelling, and any portion of an area mentioned in paragraph (a) specifically designated by the employer as a smoking area and which complies with the prescribed requirements.’