On 9 May 2018, the Minister of Health published in the Government Gazette a draft 2018 Control of Tobacco Products and Electronic Delivery Systems Bill and invited interested persons to submit comments on the Bill.[1]
On 9 December 2022, the Minister introduced the 2022 Tobacco Products and Electronic Delivery Systems Control Bill[2] in the National Assembly.[3]
The Bill aims to replace the existing statute (the 1993 Tobacco Products Control Act[4]), to reenact with greater detail its key provisions and to introduce additional provisions.[5]
After the Bill was introduced in the National Assembly, the Assembly’s health-portfolio committee held public hearings on the Bill. Doubts were repeatedly expressed throughout the public-participation process about the State’s capacity to enforce the measures required to implement the Bill effectively should it be passed by Parliament and enacted.[6]
The committee concluded its public hearings in late August 2025.[7]
Illicit trade exposes enforcement failures
In late October 2025, the health-portfolio committee heard presentations from the South African Police Services (the SAPS) and the South African Revenue Services (SARS) about the challenges posed by the flow of illicit cigarettes across South Africa’s borders.[8]
It is said, however, that most illicit cigarettes in South Africa are produced domestically.[9]
South Africa’s five-month-long COVID-19 tobacco sales ban in 2020 further entrenched illicit distribution networks. Even after the sales ban was lifted, illicit trade remained high.[10]
In 2009, the illicit cigarette market comprised 5 percent of the cigarette market. By 2022, the illicit market comprised 58 percent of the market, and illicit trade now dominates the cigarette market.
From 2002 to 2022, the government lost R119 billion (at 2022 prices) in revenue from excise duty and value-added tax, due to the government’s failure or inability to secure the supply chain from the point of production to the point of sale.[11]
The rise in the illicit cigarette trade in South Africa is the inevitable result of strict regulation, high taxes, and inadequate enforcement. The country will continue to suffer large revenue losses while the legal industry is burdened by disproportionate compliance costs, smokers are required to pay higher prices for cigarettes primarily due to sin tax, and the State lacks basic enforcement capabilities.
The chair of the Assembly’s health-portfolio committee said that the decision to invite the SAPS and SARS to give presentations to the committee was informed by issues raised during public consultations on the Bill, particularly concerning the non-enforcement of existing legislation.[12]
Existing tobacco laws are already extensive
The existing legislation (the 1993 Tobacco Products Control Act,[13] as amended[14]) stipulates that no person shall manufacture or import a tobacco product, unless it complies with any standards that may be prescribed[15] by regulation under the Act.[16] “Import” means bringing a tobacco product into the Republic for the purpose of selling that product.[17]
The 1993 legislation empowers the Minister to make regulations regarding the standards that a tobacco product must comply with, including the amounts of substances that may be contained in the product or its emissions, and methods of testing and measuring compliance with any prescribed standard.[18]
The Minister issued a notice in September 2000 which stipulates that with effect from June 2006 the tar yield of cigarettes marketed in the Republic must not be greater than 12 mg per cigarette and their nicotine yield must not be greater than 1,2 mg per cigarette.[19]
The Minister’s September 2000 notice stipulates that the amount of tar and nicotine in the smoke of a cigarette is to be determined according to the Minister’s 1994 regulations relating to the labelling, advertising, and sale of tobacco products.[20]
The Minister’s 1994 regulations specify that a package containing manufactured cigarettes must reflect the amount of tar and nicotine in the smoke of a cigarette,[21] determined in accordance with specified methods.[22] The tests[23] must be carried out, at the manufacturer or importer’s expense, by the South African Bureau of Standards or a laboratory nominated by the Director-General of Health.[24]
The 1993 legislation also empowers the Minister to make regulations regarding the ignition propensity of cigarettes.[25] On 16 May 2011, the Minister made regulations which require cigarettes to have “reduced ignition propensity”.[26] (Reduced ignition-propensity cigarettes are designed to self-extinguish when left unpuffed.[27]) The regulations stipulate that no person shall import or sell any cigarettes unless they have been tested and certified as meeting the performance standard that no more than 25 percent of the cigarettes burn their full length when tested. Testing must be conducted in accordance with a specified standard.[28] Testing laboratories must be accredited.[29]
Every manufacturer and importer must submit a certification to the Director-General attesting that each listed cigarette has been tested and meets the performance standard. Each certified cigarette must be re-certified every three years. Every manufacturer and importer must maintain, for three years, the reports of all tests conducted on all cigarettes offered for sale and make copies of the reports available to the National Department of Health on request. Cigarettes manufactured in or imported into South Africa had to comply with these regulations by 16 November 2012, and cigarettes that do not comply may not be sold, no matter when they were manufactured or imported.[30]
The 1993 Act also contains provisions regulating the packaging, advertising, and distribution of tobacco products.[31] Any person who contravenes or fails to comply with those provisions or the Act’s provision that no person shall manufacture or import a tobacco product unless it complies with prescribed standards, commits an offence,[32] as does any person who contravenes or fails to comply with these regulations made under the Act.[33]
Naturally, all these standards would only be complied with by the legal market, driving up its costs, while the illicit market is capable of producing at a significant discount.
The Bill extends regulation further
The Tobacco Bill aims to repeal[34] the 1993 Act, to reenact with greater detail its key tobacco-products control provisions, to deem things done under the 1993 Act to have been done under the Bill[35] and to introduce additional provisions.
The additional measures include, among other things, provisions:
- requiring indoor public places and certain outdoor areas to be smoke-free;[36]
- banning the sale of cigarettes through vending machines;[37]
- requiring plain packaging with graphic health warnings;[38]
- banning the display of products at points of sale;[39]
- regulating and controlling electronic nicotine-delivery systems;[40] and
- regulating and controlling pipes, roll-your-own papers and similar items.[41]
In late 2018 a judicial commission of inquiry (into tax administration and governance by SARS) found that, between 2014 and 2018, the then-commissioner of SARS disbanded various special enforcement units, including those monitoring tobacco.[42]
Pursuant to the judicial commission’s findings, that SARS commissioner was dismissed. With a new commissioner, SARS began to rebuild, but never fully regained its ability to control the illicit cigarette trade, as is evident from the persistently high illicit market share and revenue gap since 2018.[43]
South Africa’s five-month-long COVID-19 tobacco sales ban in 2020 further entrenched illicit distribution networks. Even though the sales ban was lifted, illicit trade has remained high.[44] This exercise was a case-study in how regulation of the legal market could be total – to the point of outright prohibition – without substantially impacting the “true” tobacco market that thrives outside of regulatory reach.
The 2022 Bill[45] reproduces, with greater detail, the 1993 Act’s provisions regarding[46] packaging, advertising and distribution of tobacco products,[47] and the Act’s provision that no person shall manufacture or import a tobacco product unless it complies with prescribed standards.[48]
Members of the Assembly’s health-portfolio committee noted their concern about the current number of officers dedicated to enforcement of tobacco-product legislation and highlighted the necessity of additional training and staffing to reinforce these efforts. Committee members questioned whether the Bill provides sufficient powers to address the complexities of the situation. Some members proposed that an enforcement-impact analysis be conducted to assess the implications of new laws before they are enacted, to ensure that any bill will be enforceable when passed into law.[49]
Impact assessment without the numbers
The Bill was also accompanied by a Socio-Economic Impact Assessment (SEIA).[50]
In February 2007, after a study commissioned by the Presidency and National Treasury in response to concerns about failure in some cases to understand the full costs of legislation and its impact on the economy, the national Cabinet decided there is need for a consistent assessment of the socio-economic impact of legislation.
From October 2015, Cabinet memoranda seeking approval for draft Bills must include an SEIA. The Presidency coordinates its implementation, and an Interdepartmental Steering Committee[51] provides guidance. The SEIA system aims to minimise unintended consequences from legislation including unnecessary costs from implementation and compliance and from unanticipated outcomes and encourage measures to mitigate them. The government department that sponsors a legislative proposal is responsible for developing the SEIA of the proposal.[52]
The SEIA system is not a compliance mechanism, but a process that assists departments to develop focused policies.[53]
The Bill’s accompanying SEIA[54] notably lacks a cost-benefit analysis. It also lacks empirical rigour, and assumes without more that economic and social costs are outweighed by supposed health benefits. The 2020-2022 SEIA, despite stating that it is a revision of the 2018 draft Bill’s SEIA, has clearly only been conducted on the 2018 draft Bill. Despite being published four years after the 2018 SEIA, the 2020-2022 SEIA includes only superficial changes. The 2020-2022 SEIA does not provide any statistical evidence or evidence-based assessment reports, or an analysis of implications for the full value chain. As of August 2025, three years after 2022, there was still no cost-benefit analysis.[55]
The Bill’s 2020-2022 SEIA[56] could provide a theoretical indication of the attitude of the Department of National Health to the illicit market. The SEIA has some 18 references to the illicit market and to industry representations that the Bill will lead to an increase in the illicit market. The SEIA states only that implementing the track-and trace system will control illicit trade and that the “numerous gaps” in the scheme could be improved by “strengthening enforcement mechanisms,” among other things.[57]
Yet the SAPS and SARS presentations to the Assembly’s health-portfolio committee revealed the need for increased resources within the SAPS and SARS. The SAPS and SARS both indicated to the committee that the lack of personnel and funding has severely hampered their ability to effectively combat illicit trade.[58]
Despite that, the formal memorandum on the objects of the 2022 Bill that accompanied the Bill on its introduction in the National Assembly declares that the financial implications of the Bill for the State are “None”.[59]
Enforcement concerns meet economic reality
On 15 January 2026, multinational cigarette producer British American Tobacco (BAT) announced that it will end South African production of factory-made cigarettes and close its Heidelberg plant in Gauteng by the end of 2026. BAT blamed the decision on the rise of the illicit cigarette market, which BAT estimated was now about 75 percent of the South African cigarette market, and stated that this makes continued local manufacturing unviable.[60] (BAT’s market share decreased to 33 percent in 2021 from more than 90 percent in the early 2000s.[61])
On 24 June 2026, the Assembly’s health-portfolio committee adopted a formal Motion of Desirability of the 2022 Bill. Oddly, the committee chairperson observed to the committee that illicit trade remains catastrophic, and South Africa already contends with one of the largest illicit cigarette markets in the world, sustained by socio-economic realities that cannot be legislated away overnight including acute price sensitivity and constrained enforcement capacity.[62]
Does desirability satisfy legality?
It is a fundamental principle deriving from the rule of law that the exercise of all public power, including legislative power, is only legitimate when lawful. This tenet of constitutional law, the principle of legality, admits of no exception. The principle of legality requires that a legislative measure should not be arbitrary.[63]
The Tobacco Bill is arbitrary and thus invalid because it is uncosted and is unsupported by statistical evidence or analysis of implications for the full value chain.
No law should be adopted in the absence of likely costs of implementation, enforcement and policing; or realistic prospects of widespread compliance and enforcement.[64]
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| Gary Moore | Lawyer | Senior Consultant | mail me | | Martin van Staden | Head of Policy | mail me | |
| | Free Market Foundation | | |
[1] Govt Notice 475 of 9 May 2018.
[2] Tobacco Products and Electronic Delivery Systems Control Bill 33 of 2022.
[3] Parliament: Legislation: Bills currently in Parliament. https://www.parliament.gov.za/bill/2307574.
[4] Tobacco Products Control Act 83 of 1993.
[5] See below.
[6] SA Legal Academy Policy Watch, 30 Nov 2025. “In the Spotlight: Tobacco Products Bill back in limbo”.
[7] Parliament: Media statement, 29 Aug 2025: “Health Committee Concludes Public Hearings on Tobacco Bill”.
[8] Parliament: Media statement, 24 Oct 2025: “Committee on Health Briefed on Challenges Posed by Illicit Flow of Tobacco”.
[9] Tobacco Control Data Initiative: “Illicit Trade of Cigarettes in South Africa” ca. 2024 https://southafrica.tobaccocontroldata.org/en/home/illicit-trade
[10] Econ 3×3, “Illicit cigarettes make up more than half the market” 31 Mar 2026, Mxolisi Zondi, Kirsten van der Zee, Corné van Walbeek.
[11] “Tax revenue lost due to illicit cigarettes in South Africa: 2002 – 2022” BMJ Open 2024 Mar 14, Nicole Vellios and Corné van Walbeek, Research Unit on the Economics of Excisable Products, School of Economics, University of Cape Town.
[12] Parliament: Media statement, 24 Oct 2025: “Committee on Health Briefed on Challenges Posed by Illicit Flow of Tobacco”.
[13] Tobacco Products Control Act 83 of 1993.
[14] By the General Law Fifth Amendment Act 157 of 1993, the Tobacco Products Control Amendment Act 12 of 1999, the Tobacco Products Control Amendment Act 23 of 2007 and the Tobacco Products Control Amendment Act 63 of 2008.
[15] Tobacco Products Control Act 83 of 1993 s 3A(1).
[16] Tobacco Products Control Act 83 of 1993 s 1 sv “prescribe”.
[17] Tobacco Products Control Act 83 of 1993 s 1 svv “importer” and “import”.
[18] Tobacco Products Control Act 83 of 1993 s 6(1)(d)(i) and (e).
[19] Notice relating to the maximum permissible yield of tar and nicotine in tobacco products. Govt Notice R974 of 29 Sep 2000 Sched items 1, 2.
[20] Notice relating to the maximum permissible yield of tar and nicotine in tobacco products, Govt Notice R974 of 29 Sep 2000 Sched item 3 (read with the Regulations Relating to the Labelling, Advertising and Sale of Tobacco Products, Govt Notice 2063 of 2 Dec 1994).
[21] Regulations Relating to the Labelling, Advertising and Sale of Tobacco Products, Govt Notice 2063 of 2 Dec 1994, reg 2(1)(c) read with Annexure 1 column A and Annexure 3 item 2.
[22] International Standards Organisation methods ISO 4387:1991, 3308:1991, 7210:1983, 3402:1991, 8243:1991, 10315:1991, 3400:1989, 10362-1:1991, 10362-2:1994, 2971:1987, 6488:1981, 6565:1983.
[23] To determine the amount of tar and nicotine in the smoke of a cigarette.
[24] Regulations Relating to the Labelling, Advertising and Sale of Tobacco Products, Govt Notice 2063 of 2 Dec 1994, reg 2(1)(c) read with Annexure 1 column A and Annexure 3 item 2.
[25] Tobacco Products Control Act 83 of 1993 s 6(1)(d)(iii).
[26] Govt Notice R429 of 16 May 2011, Regulations Relating to the Standards for Manufacturing of Reduced Ignition Propensity (RIP) Cigarettes.
[27] “Lawful Living: Law Made Simple” Owen Salmon, 2021. “The Laws About Tobacco, Smoking and Tobacco Products” fn 58.
[28] Of the American Society of Testing and Materials. Standard E2187-09. “Standard Test Method for Measuring the Ignition Strength of Cigarettes.”
[29] By the International Organization for Standardization pursuant to standard ISO/IEC Guide 17025:2005 as amended, General requirements for the competence of testing and calibration laboratories.
[30] Govt Notice R429 of 16 May 2011, Regulations Relating to the Standards for Manufacturing of Reduced Ignition Propensity (RIP) Cigarettes, regs 2-4, reg 7(a), reg 9, and regs 18-20.
[31] Tobacco Products Control Act 83 of 1993 s 3.
[32] Tobacco Products Control Act 83 of 1993 s 7(2) and (3).
[33] Tobacco Products Control Act 83 of 1993 s 7(2).
[34] Tobacco Products and Electronic Delivery Systems Control Bill 2022 cl 18 read with Schedule.
[35] Bill cl 19.
[36] Bill cl 2(1)(a) – (f), (2)(a) and (b), (3) and (4) and cl 15(2)(b).
[37] Bill cl 3(6)(a) and(b).
[38] Bill cl 4(1) and (2)(a) and (e) and (3)(a), cl 5(1) and (2)(a), cl 7(1)(a)(i), (c) and (d), and cl 15(1)(d)(i) – (vii).
[39] Bill cl 3(5)(a).
[40] Bill cl 1 svv “electronic nicotine-delivery system” and “relevant product”.
[41] Bill cl 1 svv “electronic non-nicotine delivery system” and “related product”.
[42] Commission of inquiry into tax administration and governance by the South African Revenue Service. Commissioner: Judge R Nugent. Commissioner’s final report, 11 Dec 2018, chapter 8 (the anti-corruption and security unit and related events) and chapter 9 (revenue collection).
[43] Zondi M, van der Zee K, and van Walbeek C. “South Africa’s Illicit Cigarette Crisis: Evidence from the 2021 Global Adult Tobacco Survey [version 1]”. VeriXiv 2026, 3:5 (https://doi.org/10.12688/verixiv.2525.1)
[44] Econ 3×3, “Illicit cigarettes make up more than half the market” 31 Mar 2026, Mxolisi Zondi, Kirsten van der Zee, Corné van Walbeek.
[45] Tobacco Products and Electronic Delivery Systems Control Bill 33 of 2022.
[46] Among other things.
[47] Bill cls 3, 4, 7 and 15(1)(d).
[48] Bill cls 8 and 15(1)(d).
[49] Parliament: Media statement, 24 Oct 2025: “Committee on Health Briefed on Challenges Posed by Illicit Flow of Tobacco”.
[50] Socio-Economic Impact Assessment revised (2020-2022): Final Impact Assessment: Name of proposal: Tobacco Products and Electronic Delivery Systems Control Bill of 2018.
[51] Of senior officials from Presidency Policy & Research Services and the Cabinet Office; National Treasury; Departments of Planning, Trade & Industry, Small Business Development, Environment, Employment, Public Service, Social Development, and Justice; and the State Security Agency.
[52] The Presidency: Socio-Economic Impact Assessment System (SEIAS) guidelines, May 2015, para 2, para 3, para 4.2.
[53] The Presidency: Socio-Economic Impact Assessment System (SEIAS) application manual, Apr 2020, para 8.1.
[54] Socio-Economic Impact Assessment revised (2020-2022): Final Impact Assessment: Name of proposal: Tobacco Products and Electronic Delivery Systems Control Bill of 2018.
[55] Nicholas Woode-Smith, Oct 2025, “South Africa’s Tobacco Bill: A Case-Study in Anti-Democratic Lawmaking” (Free Market Foundation policy brief), Executive summary and pp 21, 25.
[56] Socio-Economic Impact Assessment revised (2020-2022): Final Impact Assessment: Name of proposal: Tobacco Products and Electronic Delivery Systems Control Bill of 2018.
[57] Socio-Economic Impact Assessment revised (2020-2022): Final Impact Assessment: Name of proposal: Tobacco Products and Electronic Delivery Systems Control Bill of 2018, p 24 and p 38.
[58] Parliament: Media statement, 24 Oct 2025: “Committee on Health Briefed on Challenges Posed by Illicit Flow of Tobacco”.
[59] Tobacco Products and Electronic Delivery Systems Control Bill 33 of 2022, Memorandum on objects of Tobacco Products and Electronic Delivery Systems Control Bill par 4 “Financial Implications for State”.
[60] Business Insider Africa 15 Jan 2026 “Multibillion-dollar tobacco company shuts down South African factory due to illicit trade”.
[61] Econ 3×3, “Illicit cigarettes make up more than half the market” 31 Mar 2026, Mxolisi Zondi, Kirsten van der Zee, Corné van Walbeek.
[62] Parliament, Media Statement, 24 Jun 2026: “Committee on Health Adopts Motion of Desirability of the Tobacco Products and Electronic Delivery Systems Control Bill”.
[63] Democratic Alliance v eThekwini Municipality [2011] ZASCA 221, 2012 (2) SA 151 (SCA), pars [21], [37].
[64] Good Law Project (Prof Mervyn King SC, chair), Principles of Good Law, Nov 2015: Introduction: principal findings, item 3.3; The principles of good law: general rules for good law, and specific rules for good law – effectiveness.
