Lowveld Golden Leaf
PARLIAMENTARY PORTFOLIO COMMITTEE ON HEALTH
PUBLIC HEARINGS 19 – 20 NOVEMBER 1998
SUMMARY OF SUBMISSIONS MADE ON BEHALF OF
LOWFELD GOLDEN LEAF LIMITED

THE IMPORTANCE OF THE PUBLIC HEARINGS
Lowfeld Golden Leaf Limited appreciate the opportunity to place submissions before the Portfolio Committee. Section 59(1)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution") provides that the Assembly must facilitate public involvement in legislative and other processes of the Assembly and its committees. This aspect of the democratic legislative process is particularly important. It provides a vital opportunity for the legislature to reap the benefit of a range of perspectives on the legislation, and a range of insights into its strength and weaknesses. It gives the legislature the opportunity to consider whether the legislation still needs clarification or fine tuning before it is passed. The fact that the purposes of the legislation may be legitimate and important is not sufficient to ensure that the legislation is lawful. If, at the end of this hearing, this committee is in doubt as to the constitutionality of any provision of the Bill, such defect should be remedied now.

THE TWO STAGES OF CONSTITUTIONAL ANALYSIS
Section 2 of the Constitution provides that the Constitution is the supreme law of the land. At the heart of the Constitution is the Bill of Rights which applies to all law and binds the legislature, the executive, the judiciary and all organs of State. The Tobacco Products Control Bill impinges on a number of Constitutional requirements, such as the principle of legality, and impinges on a number of rights protected in the Bill of Rights, such as the right to freedom of expression and the right to property. This submission focuses on freedom of expression.
Constitutional Rights analysis proceeds in two stages:
Is there an infringement of a Constitutional Right?
Is such an infringement permissible in terms of Section 36 of the Constitution?
The onus of proving that there has been an infringement rests on the person who alleges that there is an infringement. Hence, it is for the complainant to show that, for example, the total ban on advertising, promotion and sponsorship, the broadness of the definitions used in the Bill and the breadth of the discretion given to the Minister infringes one or more Constitutional Rights. If that threshold is crossed, it is for the State to prove that the requirements of Section 36, the limitations clause, are met. This submission focuses on those requirements.

THE PROVISIONS OF THE LIMITATIONS CLAUSE
Section 36 provides:
"(1) the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
less restrictive means to achieve the purpose.
Except as provided in sub-section (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."
Because the State bears the onus of proving that the requirements of Section 36 are met, it must produce cogent and convincing evidence of the need for the limitation, including evidence of the purpose of the limitation and its effectiveness or likely effectiveness.
The need for balancing may be illustrated with reference to the Indecent or Obscene Printed Matter Act 37 of 1967. The need to regulate certain forms of obscenity, particularly obscenity which exploits women and children is widely recognised. However, the measures contained in the Indecent or Obscene Printed Matter Act went too far in attempting to achieve its purposes and the Act was struck down by the Constitutional Court in the Case matter 1996(3) SA 617(CC). That Act has now been replaced by the Film and Publications Act. Although this Act also limits certain forms of expression, it does so in a way which affects the right much less drastically, and in a way which is more likely to achieve the purposes of the Act.

THE NATURE OF THE RIGHT
The right to freedom of expression is particularly important to a constitutional democracy. Such expression includes commercial expression and the right of the manufacturer of a legal product to impart information concerning that product; and the right of consumers to receive such information and make choices accordingly. This includes information regarding prices and ingredients.

THE IMPORTANCE OF THE PURPOSE OF THE LIMITATION
The importance of regulating conduct which poses risk to public health is acknowledged.

THE NATURE AND EXTENT OF THE LIMITATION
The incursion of the measures contained in the Bill into the right of freedom of expression is extensive. The total ban on advertising, promotion and publicity silences certain forms of commercial speech altogether. The Bill also includes certain extremely wide-ranging definitions, which are overboard and in certain cases vague.

RELATIONSHIP BETWEEN THE LIMITATION AND ITS PURPOSE
This is essentially an enquiry about proportionality, about the relationship between means and ends. The extent of the incursion into the right must be measured against the importance of the purpose to be achieved. Most importantly, the question must be asked whether the particular measures included in the Bill are likely to achieve the purposes which are set out in the preamble to the Bill. No matter how important the purpose, measures which restrict rights must be more than likely to achieve that purpose. If they are less than likely to achieve that purpose, they are probably going to be found to be unconstitutional. Hence, it is for the State to produce cogent and convincing evidence that the measures embodied in the Act are more than likely to achieve the purposes set out in the preamble, such as discouraging people, in particular young people, from beginning smoking; encouraging smokers to desist from smoking and so on. The State is required to produce evidence that the measures contemplated in the Bill are likely to achieve those purposes. This means that documents must be produced and witnesses must be called to give evidence and to be subject to cross-examination on these issues.

WHETHER LESS RESTRICTIVE MEANS ARE AVAILABLE TO ACHIEVE THE PURPOSE
This factor is closely related to the proportionality enquiry discussed above. Even if the measures included in the Bill are proved by the State to be more than likely to achieve the stated purposes, the State must still show that those purposes could not have been achieved by less restrictive means. In other words, in ways which would do less damage to the rights at issue. The State must bring evidence to show that less drastic measures have been studied and rejected for cogent and convincing reasons.

CONCLUSION
The limitation clause allows the State to limit Constitutional Rights in order to achieve important public and social purposes. It requires, however, that certain criteria are met before the limitation is acceptable. The State is required to balance the right at stake against what it is attempting to achieve by the measures in question.