The Tobacco Amendment Bill’s “extreme and inappropriate” penalties will put the hospitality sector in conflict with its customers because it places the onus on business owners and their staff to police it. Failure to comply could result in imprisonment of between three months to 10 years – a penalty equal to that imposed for violent crime.

That’s the view of hospitality sector associations and affiliated businesses who have denounced the bill for various shortcomings – mostly related to a lack of research, evidence and consultation – warning the impact of the amendments would lay waste to a sector that has barely recovered from the Covid-related lockdowns. 

The economy is already depressed, said Fedhasa’s Rosemary Anderson. “Post-Covid, we still find ourselves trading in a negative economic environment compounded with load shedding, unreliable water supply in many areas, raw sewerage damaging former prime tourist spots, unbudgeted capital expenses necessitated for alternative energy provisions to cover for government’s inability to provide consistent supply of electricity, prohibitive diesel costs, higher electricity costs, a non-competitive anti-tourism visa system, unsafe roads, deterioration of bulk infrastructure and escalation of crime… and the government is now wanting to introduce legislation where hospitality owners … can be sent to jail for 10 years and/or have a fine if one of our waiters is found smoking in a non-prescribed area.” 

‘Disproportionate’

Anderson said the penalties proposed for the hospitality sector were unwarranted and disproportionate relative to the offences listed, comparing, and in some cases exceeding, penalties for domestic violence, housebreaking and/or violent crime.

Wendy Alberts of The Restaurant Association of South Africa agreed. She said restaurants, clubs, pubs, pop-up venues and other businesses needed to be taken into consideration because the bill would affect their operations, and they were not prepared to navigate the regulation and enforcement by getting into conflict with their customers.

“What we learnt through Covid is that the bans on businesses cost the country billions a day in loss of taxes and other revenue. I’d like to know if the government has done the necessary research to determine the impact that it will cause on the economy…

“So while it’s impacting businesses, is it going to stop people from smoking?”

Restaurant businesses, in particular, have been compliant over the years, spending a significant amount of money on education, putting up enclosures, setting aside space and ensuring signage was in place, she said.

Room revamps

The new bill bans indoor segregated smoking areas: this would also put a stop to specifically designated “smoking” bedrooms. Existing smoking rooms would, as a result, then need to be refurbished at a significant cost to ensure that non-smokers are not affected by the residue of smoke that lingers in the furniture and fittings.

Section 2(1)(b) of the bill says, “No person may smoke in any space that is within a prescribed distance from an operable window or ventilation inlet of an entrance or exit of a place where smoking is prohibited.”

Fedhasa understands this to mean a distance of 10m. In its comments on the bill, the association said since the department was seeking to close existing indoor designated smoking areas, all smokers in public places, workplaces and hospitality establishments would have no choice but to move outdoors to smoke.

‘Impractical’

“As an example of the impracticality of such a proposal, it should be noted that the majority of street pavements throughout South Africa are, in the main, around four to five metres wide. By complying with the 10m restriction, smokers in cities and towns will, in many instances, have little choice but to move off the pavements and either smoke between parked cars or in the actual street itself. This inevitable and potentially dangerous situation is surely not what the Department of Health intended.”

Section 2(2) provides that, “The Minister may prohibit smoking in any prescribed outdoor public place or workplace or such portion of an outdoor public place or workplace as may be prescribed, where smoking may pose a health, fire or other hazard or such other place where the Minister considers it appropriate to prohibit smoking in order reduce or prevent the public’s exposure to smoking.”

Fedhasa deems it reasonable to provide that the minister might propose additional non-smoking areas in any “prescribed outdoor public place or workplace” at some time in the future, but any such addition must be published, in draft format, for public comment before promulgation.

On offences and penalties, section 16(4) says that any person who contravenes or fails to comply with the various sections of the bill is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 10 years or both a fine and imprisonment.

Fedhasa wants this to be revisited and significantly amended to ensure that the penalties are proportionate to the offence committed.

Where is the voice of tourism?

Alberts said South Africa should be applying appropriate laws that could be enforced.

“I’m also eager to understand what the Department of Tourism has done in terms of data and feedback to our industry because they have been very quiet on the matter when they need to be a voice of concern, because [it affects the hospitality sector].”

The tourism department failed to respond to queries about its consultation with the hospitality industry. At first, a spokesperson said the health department would have engaged with various stakeholders, but when it was suggested that the tourism department might have had a role in being a voice for the hospitality sector, the spokesperson said they would get back to the Daily Maverick. By deadline, they had not.

South Africa has the 23rd highest smoking rate in the world.

The World Population Review 2023 ranks South Africa’s total smoking rate at 31.4%. Of that, 46.8% of smokers are male and 16% female. DM