In May 2018, the Minister of Health published a draft Control of Tobacco Products and Electronic Delivery Systems Bill[1] in the Government Gazette[2] and invited interested persons to submit comments and representations on the draft Bill.[3]
The 2018 draft Bill did not foresee the establishing of a statutory body with special powers. It also did not envisage the setting up of a monitoring committee with specific powers and functions.
But in late 2022, the Minister introduced in the National Assembly[4] the 2022 Tobacco Products and Electronic Delivery Systems Control Bill.[5] The Bill, once enacted, will authorise the Minister of Health to establish by notice in the Government Gazette[6] a “Relevant Product Monitoring Committee”.[7]
The proposed Monitoring Committee
A “relevant product” means a “tobacco product”, “tobacco device” or “electronic nicotine delivery system” and includes any “component” whether sold separately or not.[8]
A “tobacco product” means a product containing tobacco leaf intended for consumption.[9]
A “tobacco device” means an item manufactured to enable consumption of a tobacco product, by producing an aerosol or vapour for inhalation by heating the tobacco without igniting it.[10]
An “electronic nicotine delivery system” means an electronic device designed to produce an aerosol or vapour inhaled by the user and a nicotine-containing substance other than a tobacco product.[11]
A “component” includes:
- in respect of a tobacco product, parts such as paper and filter;[12]
- in respect of an electronic delivery system, any integral part or element of it including mouthpiece, atomiser, electronics and nicotine- or non-nicotine-containing substance;[13]
- in respect of a tobacco device, any integral part or element of it such as the mouthpiece, battery pack and heat source.[14]
The 2022 Bill provides that the Monitoring Committee may be established for an indefinite term or for a period determined by the Minister when the Committee is established.[15]
The Bill states that the functions of the Monitoring Committee are:
- to monitor the implementation of tobacco control programmes and laws;[16]
- to facilitate the review, development and alignment of tobacco control policies;[17]
- to monitor and facilitate the implementation and enforcement of tobacco control laws and regulations;[18] and
- any other related function delegated by the Minister.[19]
Where the powers become problematic
Some of the envisaged Committee’s functions may be legitimate. The legitimate functions are the monitoring of the implementation of tobacco-control programmes and laws,[20] and the monitoring and facilitating of the implementation of tobacco-control laws and regulations.[21]
This envisaged Committee function of facilitating the implementation of tobacco-control laws may be legitimate because the Constitution provides that the President, in whom the executive authority of the Republic is vested,[22] exercises the executive authority together with the other members of the Cabinet by, among other things, “implementing” national legislation “except where the Constitution or an Act of Parliament provides otherwise”.[23]
Although the implementing of laws is the executive’s main function, the government does not implement all laws. Many laws are implemented by other agencies.[24]
Yet setting up a special Committee to facilitate implementation of this Bill and other tobacco-control laws is not essential, the implementing of laws being the executive government’s main function.
Apart from that, the Monitoring Committee’s envisaged functions relating to policy and enforcement are probably unconstitutional.
The Bill envisages that the functions of the Monitoring Committee include the facilitating of “the review, development and alignment of tobacco control policies”[25] and the monitoring and facilitating of the “enforcement of tobacco control laws and regulations”.[26]
These envisaged functions of the Monitoring Committee relating to policy and enforcement are probably invalid.
Policy belongs to the executive
As to policy, the Constitution declares that the President exercises the executive authority, together with the other members of the Cabinet, by “developing and implementing national policy”.[27]
In contrast to the Constitution’s provision about the implementing of national legislation,[28] this provision of the Constitution does not provide that the President and other Cabinet members develop and implement national policy “except where the Constitution or an Act of Parliament provides otherwise”.
It is therefore unconstitutional for the Tobacco Bill to provide for the delegating of any part of this constitutional power of the President and Cabinet, of “developing and implementing national policy”, to the Bill’s envisaged Relevant Product Monitoring Committee.
There is a thicket of Constitutional Court and other case law which holds that the power to formulate and implement policy is exclusively the domain of the executive government.
The Constitutional Court has observed that the power to formulate and implement domestic and international trade policy “resides in the heartland of national executive authority”.[29] Developing and implementing policy is the responsibility of the executive.[30] Policy-determination is the space occupied “exclusively” by the executive.[31] And the Western Cape High Court has held that the formulation by the Minister of Justice of a policy in accordance with insolvency legislation on the appointment of insolvency practitioners constitutes an exercise of executive power.[32]
The national executive government consists of the President together with the other members of the Cabinet.[33] The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.[34] The President appoints the Deputy President and Ministers and assigns their powers and functions.[35]
The Constitution does not authorise the President or other Cabinet members to delegate any part of their power under the Constitution of developing and implementing national policy, to the envisaged Relevant Product Monitoring Committee or any other statutory body.
So, the Tobacco Bill is submitted to be unconstitutional to the extent that it provides that the functions of the Monitoring Committee include the facilitating of “the review, development and alignment of tobacco control policies”.[36]
This is a “constitutional matter”. In terms of the Constitution, a constitutional matter includes any issue involving its interpretation or enforcement.[37] When deciding a constitutional matter, a court must declare that any law that is inconsistent with the Constitution is invalid to the extent of its inconsistency.[38]
Enforcement powers lack clarity
Probably also invalid are the envisaged functions of the Relevant Product Monitoring Committee relating to facilitating the enforcement of tobacco-control legislation.
The Bill envisages that the functions of the Committee include monitoring and facilitating the “enforcement” of tobacco control laws and regulations.[39]
In connection with enforcement, the Bill provides that certain provisions from the chapter of the 2003 National Health Act[40] about health officers and inspectors, and inspections and environmental health investigations[41] will apply, with changes required by the context.[42]
The provisions from that National Health Act chapter which the Bill provides will apply are the National Health Act’s provisions relating to:
- Appointment of health officers and inspectors;
- inspections;
- non-compliance with prescribed norms and standards;
- environmental health investigations;
- entry and search of premises or health establishment with warrant by health officer or inspector;
- identification prior to entry, and resistance against entry, by health officer or inspector;
- entry and search of premises or health establishment without warrant by health officer or inspector;
- constitutional right to privacy;
- miscellaneous provisions relating to health officers, inspectors and compliance procedures; and
- offences and penalties.[43]
The Bill states that it may be enforced by registered environmental health practitioners,[44] by persons authorised by the Director-General of Health to enforce it, by officials of the Department of Labour,[45] and by any “law enforcement officer”[46] (members of the South African Police Service and metropolitan police departments, of the National Traffic Police and provincial and municipal traffic agencies, and of the Border Management Authority[47]).
The Bill contains provisions:
- that will regulate smoking, the sale and advertising of tobacco products and electronic delivery systems, and the packaging and appearance of tobacco products and electronic delivery systems;
- that will provide for standards in respect of the manufacturing and export of tobacco products and electronic delivery systems; and
- that will prohibit the sale of tobacco products and electronic delivery systems to children, the free distribution of tobacco products and electronic delivery systems, and the sale of tobacco products and electronic delivery systems by means of vending machines.[48]
The Minister must make regulations regarding numerous specified matters,[49] and may make regulations regarding other matters.[50]
Then, says the Bill, the functions of the envisaged Monitoring Committee are[51] to monitor and “facilitate” the implementation “and enforcement” of tobacco-control laws and regulations.[52] But the Bill does not indicate how the Committee must perform this function of facilitating the enforcement of tobacco-control laws.
The Bill does not indicate how the Committee should facilitate enforcement of the Bill’s provisions regulating smoking, sale and advertising, or packaging, or its manufacturing and export standards, or its prohibitions of sales to children or for free or in vending machines, or the envisaged numerous regulations.
Nor does the Bill indicate how the Committee is to facilitate such enforcement by the national and metropolitan police, various traffic departments, and border management authority.
Vagueness raises constitutional concerns
It can thus fairly be said that this clause of the Bill, that the functions of the Monitoring Committee are to monitor and facilitate the implementation and enforcement of tobacco-control laws and regulations, is vague. Vague statutory provisions are unconstitutional.
The Constitution declares that the Republic is founded on[53] the supremacy of the rule of law.[54] Laws inconsistent with the Constitution are invalid.[55]
The exercise of public power is subject to constitutional control. Laws must comply with the rule-of-law doctrine of legality, which requires that laws must not be vague. A law must indicate with reasonable certainty what it requires.[56]
If these objectionable provisions (that the Relevant Product Monitoring Committee may develop tobacco-control policies and facilitate the enforcement of tobacco-control laws) remain in the Bill and Parliament passes the Bill and the President signs it and it becomes an Act of Parliament,[57] then a superior court will, on application by any person with a direct interest in the matter,[58] in all probability declare the provisions invalid.[59] When deciding a constitutional matter, a court must declare that any law that is inconsistent with the Constitution is invalid, to the extent of its inconsistency.[60]
Parliament still has time to act
As of Wednesday, 12 August, the Portfolio Committee on Health has conducted a clause-by-clause review of the Tobacco Bill. Encouragingly, the parliamentary committee has shown that it is open to revising the Bill as given.
Parliament should therefore remove the provisions establishing the envisaged Relevant Product Monitoring Committee and assigning functions to it. At worst, Parliament should make the contemplated Committee merely advisory, with significantly reduced functions.
Gary Moore | Lawyer | Senior Consultant | Free Market Foundation | mail me |
[1] Draft Control of Tobacco Products and Electronic Delivery Systems Bill 2018.
[2] Gazette 41617.
[3] Govt Notice 475 of 9 May 2018.
[4] Parliament: Legislation: Bills currently in Parliament. https://www.parliament.gov.za/bill/2307574
[5] Tobacco Products and Electronic Delivery Systems Control Bill 33 of 2022 (the “Bill”, “2022 Bill”, “2022 Tobacco Bill”, or “Tobacco Bill”).
[6] Interpretation Act 33 of 1957 s 2 sv “Gazette” para (c).
[7] Bill cl 12(1).
[8] Bill cl 1 svv “relevant product”.
[9] Bill cl 1 svv “tobacco product”.
[10] Bill cl 1 svv “tobacco device”.
[11] Bill cl 1 svv “electronic nicotine delivery system”.
[12] And plug wrap and tube. Bill cl 1 sv “component” par (a).
[13] And cartridge, tank system, drip tip, internal power source, and software. Bill cl 1 sv “component” par (b).
[14] Bill cl 1 sv “component” par (c).
[15] Bill cl 12(2)(a).
[16] Bill cl 13(1)(a).
[17] Bill cl 13(1)(b).
[18] Bill cl 13(1)(c).
[19] Bill cl 13(1)(d).
[20] Bill cl 13(1)(a).
[21] Bill cl 13(1)(c).
[22] Constitution s 85(1).
[23] Constitution s 85(2)(a).
[24] Constitutional Law of South Africa 2 ed (eds S Woolman, M Bishop) Mar 2012 Ch 18 The President and the National Executive (C Murray, R Stacey) §18.3(c) Powers of Cabinet.
[25] Bill cl 13(1)(b).
[26] Bill cl 13(1)(c).
[27] Constitution 85(2)(b).
[28] Constitution s 85(2)(a).
[29] International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2010 (5) BCLR 457 (CC) par 44 per Moseneke J the other judges concurring.
[30] Glenister v President of the Republic of South Africa and 0thers [2011] ZACC 6, 2011 (7) BCLR 651 (CC) [“Glenister II”] par 67 per Ngcobo J for a minority of the judges on a point not contradicted by the majority.
[31] Electronic Media Network Ltd and others vs e.tv (Pty) Ltd and others [2017] ZACC 17; 2017 (9) BCLR 1108 (CC) (8 Jun 2017) par [2] per Mogoeng CJ (Nkabinde ADCJ, Mojapelo AJ and Zondo J concurring) in a minority judgment whose proposed order was supported in another minority judgment (per Jafta J), thus constituting the order of a majority.
[32] South African Restructuring & Insolvency Practitioners Assoc v Minister of Justice & Constitutional Development and others, and Concerned Insolvency Practitioners Assoc NPC and others v Minister of Justice & Constitutional Development and others [2015] ZAWCHC 1; 2015 (4) BCLR 447 (WCC) (13 Jan 2015) par 99 per Katz AJ.
[33] Constitutional Law of South Africa 2 ed (eds S Woolman, M Bishop) Mar 2012 Ch 18 The President and the National Executive (C Murray, R Stacey) §18.3 Cabinet.
[34] Constitution s 91(1).
[35] Constitution s 91(2).
[36] Bill cl 13(1)(b).
[37] Constitution s 167(7).
[38] Constitution s 172(1)(a).
[39] Bill cl 13(1)(c).
[40] National Health Act 61 of 2003 as amended.
[41] National Health Act 2003 chap 10.
[42] Bill cl 17(1).
[43] National Health Act 2003 chap 10 ss 80, 82, 82A, 83, 84, 85, 86, 86A, 88 and 89.
[44] In terms of the Health Professions Act 56 of 1974.
[45] Acting in terms of the Labour Relations Act 66 of 1995.
[46] Bill cl 17(2, (3) and (4).
[47] Among others. Bill cl 17(5).
[48] Bill Long title and ss 2 3, 4, 5, 6,7, 8, 9 and 15.
[49] Bill cl 15(1)(a), (b)(i)-(iii), (c)(i)-(iii), (d)(i)-(vii), (e)(i)-(v), (f), (g) and (h).
[50] Bill cl 15(2)(a)(i)-(iii), (b), (c) and (d).
[51] Among other things.
[52] Bill cl 13(1)(c).
[53] Among other values.
[54] Constitution s 1(c).
[55] Constitution s 2.
[56] Affordable Medicines Trust and others v Minister of Health and another [2005] ZACC 3; 2005 (6) BCLR 529 (CC) paras 48, 49, 108 per Ngcobo J, all other members of the Court concurring.
[57] Constitution s 81.
[58] Roodepoort-Maraisburg Town Council v. Eastern Properties (Prop) Ltd 1933 AD 87 per Wessels CJ at 101.
[59] The Supreme Court of Appeal on appeal, or the High Court, may make an order that an Act of Parliament is constitutionally invalid. The order, to be of force, will need to be confirmed by the Constitutional Court. Constitution ss 167(5) and 172(2)(a).
[60] Constitution s 172(1)(a).