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Smokers? Get ’em up against the wall!

Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets.

The government’s latest regulatory assault against smokers is a gross abuse of power. It is an executive branch decree that usurps legislative branch powers, and contradicts the very law under which it is made. And there are many more reasons to scrap it.

Let’s be clear from the outset. Non-smokers, and especially those who take offence at being exposed to undue amounts of tobacco smoke, have every right to seek protection against smokers. In much the same way that your freedom to play your music ends at a certain volume and a certain hour, or your liberty to swing your arms ends where the nose of another begins, it is reasonable to expect not to be unavoidably exposed to tobacco smoke.

For the most part, existing law achieves that. In fact, considerably less law would achieve that.

Existing law provides for separate smoking areas in venues that cater to the public. Existing law provides for the total prohibition of smoking in pretty much any place where it would be objectionable, and does not prevent private property owners from going even further than the law requires.

This raises the question: why does the government believe it necessary to dedicate its strained resources to impose measures that, by any reasonable analysis, have no further benefit to non-smokers, and only impose harsh punitive measures on those who exercise their right to consume an otherwise perfectly legal product?

And if they are bad law, are the new regulations even within the government’s legal power?

The Law Review Project, in its submission to government, argues not. It makes a convincing case, firstly on the basis of the separation of powers, and secondly on the grounds that the regulation exceeds the written intent of the law it is meant to implement.

It says a core component of the rule of law, contained in the very first section of the Constitution, is to separate legislative, executive and judicial power. “The separation of powers means that substantive law, especially far-reaching laws such as this, ought to be legislated by the legislature.”

It goes on to explain the reasons for this principle, namely that the legislature is subject to a raft of checks and balances when it establishes substantive law, which does not – and needs not – bind the executive in merely implementing such law. As such, any regulations as draconian as these merit at least being passed by elected representatives in Parliament, rather than being handed down by the executive decree of a crusading public servant.

The regulation also goes beyond what the law permits. “Since the Tobacco Products Control Act envisages indoor smoking ‘subject to any prescribed condition’, the [Minister of Health] is empowered to prescribe conditions rather for than against indoor smoking,” the Law Review Project opines.

The effects of this regulation are likely to be perverse. Its more ill-considered (and frankly self-contradictory and sometimes physically impossible) provisions will make de facto criminals out of many innocent citizens. 

Proprietors who fail to encourage their patrons to smoke in designated, exposed, outdoor concentration camps, or fail to prevent them from lingering in these unpleasant conditions, are liable for a fine of R100,000. This is 200 times as much as the R500 ticket the unlawful smoker is on the hook for.

If you live in a densely populated area, such as a city or a township, you might not even be able to find a spot that is “not within ten metres” (which the regulation specifies in contradiction to its own stated minimum of five metres) of a “window, doorway, ventilation inlet, or entrance into a public place”. If you’re walking on the beach with someone, and both of you light up, a strict interpretation of the regulation would require you to separate by 50m. 

Why a minimum distance of five metres becomes ten when it involves a door or a window, and 50 when it involves a beach, is left as an exercise for psychiatrists who specialise in bureaucratic disorders.

The regulation nullifies previous expenses incurred at the behest of the government. Property owners have already built, at their own very significant cost, solid partitions, separate entrances, and elaborate extraction fans. The new draft regulation wastes all this investment, and forces owners to incur new costs. Some of these costs are remarkably silly. For example, the regulation says, “No person may smoke any tobacco product in any public place.” Full stop. But the regulation also requires establishment owners to go to the additional expense of making signage, the exact colours and dimensions of which are prescribed by law because we’re too damn stupid to write our own signs. The reason? “To ensure that employees and the public are aware that smoking is not permitted in the area or place.” By implication, one can plead ignorance upon arrest over a bar fight or the theft of a handbag, because there wasn’t a sign that said it was illegal.

More pertinently, this regulation will seriously harm the business of places that cater to smokers. By refusing customers any opportunity to smoke – other than a small, exposed outdoor area where no drinks or entertainment are permitted – potential patrons will simply stay home. The anti-smokers in Britain swore that non-smokers would turn up to the smoke-free pubs in their droves, but the hard reality is that people simply stayed home. Since the smoking ban went into effect, thousands of pubs and restaurants closed their doors, and the rate of closures is increasing. The Lost Pubs Project cites figures as high as 50 closures per week.

Does anyone think job-destroying and revenue-sapping regulations are what this country needs, when non-smokers are already perfectly well protected from the nuisance of cigarette smoke? And when smokers pay for fully one quarter of the nation’s healthcare budget – and have a nasty habit of obligingly dying young – can the government really afford to cast them out into the cold?

This regulation, unconstitutional and illogical as it is, is only likely to aggrieve smokers. Instead of behaving socially as they would otherwise do – for the most part being considerate of non-smokers who object to smoke – many will now stamp their feet and assert legal entitlement to offend non-smokers in the few remaining places where they are still permitted to smoke. This is hardly a recipe for social cohesion, and by subjecting smokers to humiliating ostracism, offends their dignity far more severely and directly than any political cartoon could do.

The Law Review Project notes the principles of good law that ought to apply to smoking regulations. One is nuisance law. “The time-honoured principle of law that no one may constitute an undue nuisance to anyone else, or in any other way violate their rights (assault, theft, rape, fraud, trespassing etc.) would, if properly enforced, be all anti-smokers need for their protection.”

Other grounds for considering the new regulations bad law, and for the minister to refer them back for “fundamental reconsideration”, can be found in principles of private property and contract law. In fact, the entire Law Review Project submission is very well worth reading.

No doubt nanny-staters who yell “cancer” and “pollution” at the drop of a hat will applaud these draconian measures. They might do so while sipping wine in front of their crackling log fires, or having a pint around a braai. Presumably, they won’t want wine or beer to be banned on the grounds that it causes accidents and healthcare expenses, or places the children of tipsy parents at risk. Presumably, they won’t want their nice wood-burning fireplaces or weekend braai gatherings banned because they are a fire risk and cause pollution. No, it’s always about someone else’s behaviour.

In a great rant on the subject over at the Wry Republic, Gareth Brickman, an associate member of the Mises Institute of South Africa, recalls a passage that was as apt when it was first written as it is now: “Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”

It is worth continuing the quotation on moralising, which is from the renowned Christian essayist C.S. Lewis’s 1948 book, God in the Dock: “They [the omnipotent moral busybodies] may be more likely to go to Heaven, yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.”

Indeed. A nanny state is dehumanising. It is an attack on basic human dignity, and an unconscionable imposition on the freedom for which every generation fights anew. 

And yes, sharp-eyed logicians, I intended a slippery slope argument here, because it is one. Watch out. You may well be the next one up against the wall. DM


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