22 August 2001
The Ministry of Health has secured fresh legal opinion on whether smoking in a public place constitutes an offence in terms of the Tobacco Products Control Amendment Act. On the basis of this, the Ministry and the Department take the view that the Act provides a solid basis for the prosecution of any person smoking in a public place.
The Ministry requested the legal opinion after the Western Cape Police Commissioner advised all station commanders in the province that smoking in a public place was prohibited but did not constitute an offence. This view arose from the fact that section 2(1)(a) of the Amendment Act prohibits smoking in a public place, while the specification of the offence is contained in section 7(1) which also prescribes the penalty. The issue was whether the link between these two sections was sufficiently direct and specific.
The opinion obtained by the Ministry is clear that the Act, construed as a whole, works effectively and leaves no doubt as to its intention.
The Minister's legal adviser Patricia Lambert explains: "The intention of the Act is an important factor when intepreting it. And the preamble to the Act makes it quite clear, in plain language, that Parliament intended not only to prohibit smoking in public places but to make it an offence."
A second legal principle that supports the interpretation that smoking in public places is an offence is one that states statutory provisions should not be meaningless. "If the Act prohibited smoking in public places but did not make it an offence, this would be meaningless," Advocate Lambert points out.
Furthermore, our Constitution stipulates a principle of legality - which means that a person may only be punished if a crime has been defined and the person is proved to have committed that crime. "The fact that a penalty is prescribed in relation to section 2(1)(a) is therefore confirmation that the prohibited act of smoking in a public place is defined as a criminal offence," says Ms Lambert.
She adds that there is also a rule that a judge has the discretion to attach a penalty to an action that is clearly prohibited in law but which does not carry a specific penalty. Under this rule section 2(1)(a) would be punishable even without section 7(1).
"We would like to remind the public that interpretation of the law is the job of our courts. -- it is not the prerogative of the police service. The Tobacco Products Control Act remains in force and the police have an obligation to act against transgressors. To the many smokers who have shown great co-operation so far, our advice is: Don't be misled into lighting up now in a restaurant or a pub - it could end up being an expensive meal or drink!"
While the Ministry firmly believes the Act in its current form can achieve our objectives, confusion over its meaning is obviously not helpful. If there are ambiguities in the wording of the Act we will look into clearing these up.