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12 July 2012

Smoking rules have business fuming

Plans by the government to further restrict smoking in public places has some people in the hospitality business fuming and threatening legal action.

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Plans by the government to further restrict smoking in public places has some people in the hospitality business fuming and threatening legal action.

Township Liquor Traders Association secretary and shebeen owner Patric Poggenpoel said health authorities had decided on the rules without consulting township shebeen and tavern owners.

Putting the regulations into effect in a township environment was impossible, he said. "This regulation must be rejected because it is not possible to implement."

Health Minister Aaron Motsoaledi has flighted the new rules under the Tobacco Products Control Act.

What the new rules mean

They prohibit smoking in "any public place" and outdoor places, including sport facilities, playgrounds, zoos, schools and child care facilities, health facilities, outdoor venues where events are taking place, covered walkways and parking areas and beaches where there is swimming.

Smoking will also prohibited within 10 metres of windows, doorways or an entrance to a public place.

Poggenpoel said requiring smokers to go 10 metres from a shebeen doorway would put smokers on sidewalks where they would inconvenience pedestrians.

Managing patrons and their safety would be difficult outside the shebeen's property. Poggenpoel said shebeen owners had not been consulted on the rule making and asked the department of health to reconsider.

"The government must come and see how we operate before just imposing on our businesses," Poggenpoel said. "We are gatvol that government has imposed on how we run our businesses."

Health spokesman Fidel Radebe did not immediately respond to requests for comment. Poggenpoel was speaking at a news briefing at the Free Market Foundation in Bryanston.

Violating the constitution

Free Market Foundation director Leon Louw called the new rules "ill-considered" and "elitist" as they did not take into account their practical implications. "It's highly elitist because it pre-supposes an area with a lot of space," Louw said.

He said the restrictions would prevent smokers in an office park from puffing outside of their buildings, and instead required them to go onto the street.

He argued that this would damage productivity as workers would now spend more time away from their desks. Poggenpoel said if the new rules went ahead some business owners and organisations would likely challenge it in court.

He said that while many shebeens would have difficulty affording a court challenge, he hoped that non-profit legal resource centres would come to their aid.

Law Review Project researcher Tebogo Sawapa said he knew of some commercial organisations who also intended to sue and called the new regulations "unconstitutional".

He argued that the rules would infringe on smokers' rights to freely associate by forcing them to go outdoors to smoke.

"The regulation is forcing shebeen owners to treat their customers like leprous people," Sawapa said.

Sawapa said if the rules forced smokers onto sidewalks, this would cause an infringement to a healthy environment - to pedestrians on that sidewalk.

The main problem, he said, was the way the new smoking rules were to be put into practise.

"The minister of health by proposing this type of regulation has violated the Constitution."

Sawapa said the minister had the power to alter rules administratively, but any substantive change - such as the new smoking rules - must be made through Parliament. This process would also allow for more public consultation.

(Sapa, July 2012)

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