Posted on: September 9, 2009 Posted by: Diane Swarts Comments: 5

Two Tobacco Products Control Amendment Acts, Act 23 of 2007,as well as Act 63 of 2008, commenced on 21 August 2009, following a proclamation in Government Gazette 32345. The amendments do not affect current regulations against smoking in public.

The proclamation has given rise to widespread uncertainty regarding current legislation, however, it is clear that the earlier notice relating to smoking in public places, published in Government Notice Regulation 975 of 29 September 2000 (hereafter named ‘the Regulations’), was not amended or repealed, and remains in effect, writes Lucinda van Rensburg.

No piece of legislation is read in isolation. The relevant Acts are:
1) Tobacco Products Control Act, 83 of 1993 (Principal Act)
2) Tobacco Products Control Amendment Act, 12 of 1999
3) GN R975 of 29 September 2000: Notice relating to smoking of tobacco products in public places
4) Tobacco Products Control Amendment Act, 23 of 2007
5) Tobacco Products Control Amendment Act, 63 of 2008.

In terms of the Regulation, the Minister declared certain public places, specified in the schedule, as permissible smoking areas, subject to specified conditions. Regulation 2 stipulates that smoking is permitted in these public places:

(a) Smoking establishments; Regulation 1 provides the following definition “smoking establishment” means an establishment where the primary business is to sell tobacco products to the general public for consumption on or off the premises, and to provide for related business activities;

(b) Bars, pubs, taverns or any other public place where the primary business is the sale of alcohol beverages, subject to clause 3; Regulation 1 provides the following definition: “pub”, “bar” or “tavern” means a public place where the primary business of the place is to sell alcoholic beverages to the general public, for consumption on the premises;

(c) Night clubs, casinos or any other public place where the primary business is the provision of entertainment, subject to clause 3;

(d) Restaurants, subject to clause 3; Regulation 1 provides the following definition “restaurant” means a public place where the primary business of the place is the sale of prepared food to the general public, for consumption on or off the premises;

(e) Hotels, guest houses, bed and breakfast places, game lodges and other places where accommodation is offered for sale, subject to clause 3;

(f) Passenger ships registered in the Republic, subject to clause 4;

(g) Passenger trains operating in the Republic, subject to clause 5;

(h) Work places, subject to clauses 3, 6, 7; and 8;

(i) Airports, subject to clause 3.

Regulation 3 provides that an employer, owner, licensee, lessee or person in control of a public place may designate a portion of a public place as a smoking area, provided that:

(a) The designated smoking area does not exceed 25% of the total floor area of the public place;

(b) The designated smoking area is separated from the rest of the public place by a solid partition and an entrance door on which the sign “SMOKING AREA” is displayed, written in black letters, at least 2cm in height and 1.5 cm in breadth, on a white background;

(c) The ventilation of the designated smoking area is such that air from the smoking area is directly exhausted to the outside and is not re-circulated to any other area within the public place;

(d) The message: “SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT PHONE 011 720 3145” is displayed at the entrance to the designated smoking area, written in black letters, at least 2cm in height and 1.5 cm in breadth, on a white background;

(e) Notices and signs indicating areas where smoking is permitted and where it is not permitted must be permanently displayed and signs indicating that smoking is not permitted must carry the warning: “ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE”;

Regulation 6 determines that an employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place.

The employer must in terms of Regulation 7 ensure that employees who do not want to be exposed to tobacco smoke in the workplace are protected from tobacco smoke in that workplace; and that employees may object to tobacco smoke in the workplace without retaliation of any kind.

Regulation 8 explicitly requires that employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999) – being 1 October 2000, thus 3 months from that date would be 1 January 2001.

In addition any employer, owner, licensee, lessee or person in control of any public place or part of a public place may in terms of Regulation 9 out-and-out (totally) prohibit smoking in that place.

Changes in terms of Tobacco Products Control Amendment Act, Act 23 of 2007 (TPCAA 23/2007) and Tobacco Products Control Amendment Act, Act 63 of 2008 (TPCAA 63/2008) (collectively referred to as the amendment acts)

TPCAA 23/2007 amends the definition of workplace to include any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment, the amended definitions reads as follows:

“workplace”:
(a) means any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment; and
(b) includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment; but
(c) excludes any private dwelling, and any portion of an area mentioned in paragraph (a) specifically designated by the employer as a smoking area and which complies with the prescribed requirements.

Remember that the Regulations still provide for designated smoking areas – this has not been repealed. Thus workplace definition part (a) has to be read with workplace definition part (c) that lists the areas excluded from the smoking requirements generally applicable to workplaces, listed there under is designated smoking areas.

If an area has not been designated as a smoking area in line with the Regulations, section (a) will apply; if designated as a smoking area, that smoking area must comply with the Regulations applicable to designated smoking areas (as discussed above).

TPCAA 23/2007 amends sections 2 that deals with control over smoking of tobacco products.

S2 (1) (a) stipulates that no person may smoke any tobacco product in:
i. a public place;
ii. any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place;
iii. any motor vehicle when a child under the age of 12 years is present in that vehicle; or
iv. any place contemplated in subsection (3).

Public place is defined as meaning any indoor, enclosed or partially enclosed area which is open to the public, and includes a workplace and a public conveyance

Workplace, as discussed above refers to:
(a) any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment; and
(b) includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment; but
(c) excludes any private dwelling, and any portion of an area mentioned in paragraph (a) specifically designated by the employer as a smoking area and which complies with the prescribed requirements.

Public conveyance is defined as including transporting people by means of any commercial or chartered aircraft, ship, boat, train, bus, mini-bus or taxi.

i. Any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place

Prescribe means prescribed by regulation under this Act; accordingly it implies that a Regulation will be incorporated under the Tobacco Products Control Act, as amended from time to time, which deals with prescribed distances. The Regulations, as they have not been amended, does not include these provisions as yet. Once these new Regulations have been incorporated, the prescribed distances requirement will make better sense.

ii. Any motor vehicle when a child under the age of 12 years is present in that vehicle;

This requirement is fairly self explanatory, and does not require any further clarification.

iii. Any place contemplated in subsection (3)

In accordance with S2(3) the Minister may prohibit the smoking of any tobacco product in any prescribed outdoor public place, or such portion of an outdoor public place as may be prescribed, where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard. Again, these requirements will apply to regulations to be promulgated by the Minister.

S2 (2) places a duty on the owner of or person in control of a place or an area contemplated in subsection (1) (a), or an employer in respect of a workplace to ensure that no person smokes in that place or area.

S2 (4) stipulates that the owner of or person in control of a place or area contemplated in subsection (1) (a), or employer in respect of a workplace is obliged to display the prescribed signs and to make the prescribed public announcements in order to inform any person who enters or who is in or on such place or area of any prohibition on smoking.

As the Regulations incorporated in September 2000 provides for smoking notifications and signs (see discussion above), and in the absence of further Regulations; compliance with the GN R975 will be important.

S2 (5) places a further duty on employers to ensure that:
(a) Employees may object to smoking in the workplace in contravention of this Act without retaliation of any kind;
(b) Employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed;
(c) It is not a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and
(d) Employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.

Lastly S2 (6) determines that the owner of or person in control of a place or area contemplated in subsection (1) (a), or employer in respect of a workplace, must ensure that no person under the age of 18 years is present in any portion of the workplace where smoking is permitted or in the area within a public place contemplated in subsection (1) (b) in or on which smoking is permitted.

Offences and penalties

Section 7 deals with offences and penalties. S7 (1) is an existing provision as per the principal act of 1993 and stipulates that any person who contravenes or fails to comply with section 2(2), (4) or (6), or fails to comply with any condition contemplated in section 2(1)(b), will be guilty of an offence and liable on conviction to a fine not exceeding R50 000.

For ease of reference, here are details of the sections referenced above:

• S2 (2): The owner of or person in control of a place or an area contemplated in subsection (1) (a), or an employer in respect of a workplace, shall ensure that no person smokes in that place or area.

• S2 (4): The owner of or person in control of a place or area contemplated in subsection (1) (a), or employer in respect of a workplace, shall display the prescribed signs and shall make the prescribed public announcements in order to inform any person who enters or who is in or on such place or area of any prohibition on smoking.

• S2 (6): The owner of or person in control of a place or area contemplated in subsection (1) (a), or employer in respect of a workplace, shall ensure that no person under the age of 18 years is present in any portion of the workplace where smoking is permitted or in the area within a public place contemplated in subsection (1) (b) in or on which smoking is permitted.

S7 (2) was substituted by TPCAA 63/2008 and specifies that any person who contravenes or fails to comply with section 2(5), 3(8), (9)(a) or (b) or (10), 4(1), (2), (3), (4)(a) or (b) or (5) or 5, or contravenes or fails to comply with any regulation made in terms of this Act, will be guilty of an offence and liable on conviction to a fine not exceeding R100 000.

This section has a material implication on employers, as non-compliance may lead to fines of up to R100 000.

For the purposes of this explanatory note, and for your ease of reference, herewith the details of the relevant sections referenced above:

• S2(5): An employer must ensure that:
(a) employees may object to smoking in the workplace in contravention of this Act without retaliation of any kind;
(b) employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed;
(c) it is not a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and
(d) employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.

S7 (3) was also substituted by TPCAA 63/2008 and dictates that any person who contravenes or fails to comply with section 3(1), (2), (3), (6), (7)(a) or (b), 3A, or 4A will be guilty of an offence and liable on conviction to a fine not exceeding R1, 000,000.

Section 3 & 4 are the focus of the penalties dealt with under S7 (3), which may lead to a fine of up to R1-million. Section 3 deals with advertising, sponsorship, promotion, distribution, display and information required in respect of packaging and labelling of tobacco products; S3A sets the requirements for standards for manufacturing, importing and export of tobacco products; and S4A prohibits free distribution and reward.

* Lucinda van Rensburg (BLC; LLB; DipIR; LLM:LL; LLM:Gen) is MD of Implex Legal Compliance Solutions.

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5 People reacted on this

  1. Thank you for this info. I want to ask a question. We have a designated smoking area in die car park. (previously it was a parking space). These parking bays are under a roof. Now some of the employees moan that it is against the new laws to have the smoking area there, but I have studied these laws over and over and have also read through your interpretations but according to the law, I cannot find anything that would prohibit this smoking area. My meaning is that nobody works there, they park their cars there and secondly it is not an area where public transport drops people off or picks the up. There is no smoking areas in the building as it was stated as a smokefree building nearly 10 years ago.

    Thank you for all the useful info and tips.

    Hjalni

  2. I would like to know what the rules are regarding smoking in a building.

    The ‘smoking room’ opens up into the corridor and to get to the kitchen you have to walk straight into the smokers’ room. The whole corridor smells of smoke as well as the studios we work in. The ventilation is very bad and in some parts there is no ventilation.
    It’s really unpleasant for the people that does not smoke and would like to know if there is something that can be done to this situation.

  3. Dear TUT arch student; see the paragraph starting with ‘Regulation 3’, paragraphs b and c are relevant to your situation. The wording is from the Regulation. Perhaps you could leave a printout on the desk of the manager, dean, boardroom, and notice board, Greetings, Edmond

  4. Please could SOMEONE out there tell me what the legal distance from an entrance/window/ventilation is??? We are having war in our office. Has anything official actually been promulgated???? -Trish

    Former editor comments; Dear Trish, the law and its intention is clear. Your employer may have failed to develop and adopt a policy on substance abuse, dignity and violence. Such a policy may include ergonomics issues and personal conduct issues. Ideally, a third party, like a Sheq specialist from a head office or affiliate, a consultant or a specialist, could facilitate policy development, and employees then sign a pledge, which is also disclosed to prospective employees before being contracted, Greetings, Edmond

  5. We have a smoking room at our premissis, resently the Company has said we are not allowed to smoke anywhere in the building.
    We know all smoke outside the building. Can you tell what is the law regarding smoking at work. Is the Company required by law to provide the staff with an enclosed smoking area and are they allowed to ban all smoking on the premissis, buildings. If so are we permitted to smoke outside of the premissis.

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