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[2012] ZASCA 107
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British American Tobacco South Africa (Pty) Ltd v Minister of Health (463/2011) [2012] ZASCA 107; [2012] 3 All SA 593 (SCA) (20 June 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
463/2011
Reportable
In the matter between:
BRITISH AMERICAN TOBACCO
SOUTH AFRICA (PTY) LIMITED
….....................................
APPELLANT
and
MINISTER OF HEALTH
…......................................
FIRST
RESPONDENT
NATIONAL COUNCIL AGAINST
SMOKING
…......................................................................
AMICUS
CURIAE
Neutral citation:
BATSA
v Minister of Health
(463/2011)
[2012] ZASCA 107
(20 June 2012)
Coram:
Mthiyane DP,
Farlam, Malan, Tshiqi JJA and McLaren AJA
Heard: 30 April 2012
Delivered: 20 June 2012
Summary:
Proper
interpretation of
s 3(1)
(a)
of the
Tobacco
Products Control Act 83 of 1993
as amended,
read with the
definitions of ‘advertise’ and ‘promotion’.
_____________________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court, Pretoria (Phatudi J sitting as court of first
instance):
The following order is made:
1 Subject to paragraph 2 hereof
the appeal is dismissed.
2 The costs order in the court a
quo is set aside and replaced with the following:
‘
No
order is made as to costs.’
___________________________________________________________
JUDGMENT
MTHIYANE DP (FARLAM, MALAN,
TSHIQI JJA AND McLAREN AJA CONCURRING)
Introduction
[1] This appeal is concerned with
the proper interpretation of s 3(1)
(a)
of the Tobacco Products
Control Act 83 of 1993 (the Act) as amended by the Tobacco Products
Amendment Act 63 of 2008.
[2] Section 3(1)
(a)
of the
Act provides as follows:
‘
No
person shall advertise or promote, or cause any other person to
advertise
or
promote
,
a
tobacco product through any direct or indirect means, including
through sponsorship of any organisation, event, service, physical
establishment, programme, project, bursary, scholarship or any other
method.’
(My
underlining.)
[3] The section contains two
principal prohibitions: the first is ‘advertising’ and
the second ‘promotion’
of a tobacco product. In terms of
s 1 of the Act, as amended, ‘advertisement’ in relation
to a tobacco product ─
‘
means
any
commercial
communication
or
action
brought to the attention
of
any
member of the public
in any manner with the aim, effect or likely effect of─
promoting the sale
or use of any tobacco product, tobacco product brand element or
tobacco manufacturer’s name in relation
to a tobacco product;
or . . .
(c)
excludes
commercial communication between a tobacco manufacturer or importer
and its trade partners, business partners, employees
and share
holders and any communications required by law.’
(My
underlining.)
The word ‘advertise’
has a corresponding meaning.
[4] ‘Promotion’ is
defined as ‘the practice of fostering awareness of and positive
attitudes towards a tobacco
product, brand element or manufacturer
for purposes of selling the tobacco product or encouraging tobacco
use, through various
means, including direct advertisement,
incentives, free distribution, entertainment, organised activities,
marketing of brand elements
by means of related events and products
through any public medium of communication including cinematographic
film, television production,
radio production or the internet’.
The word ‘promote’ has a corresponding meaning.
[5] A failure to comply with the
impugned prohibition gives rise to a criminal offence, punishable by
a fine of up to R1 million.
[6] The appellant, a tobacco
manufacturer conducting business as part of the British American
Tobacco Group, which has a business
presence in 180 countries
throughout the world, was concerned about the impact the amendment
would have on its ability to communicate
one-to-one with consenting
adult consumers of tobacco products, if the impugned provision were
interpreted as extending to one-to-one
communications between itself
on the one hand, and consenting adult consumers of its products, on
the other.
[7] The information the appellant
wished to impart to consenting adult consumers of its tobacco
products includes the following:
(a) packaging changes, which
communication will generally be aimed
at ensuring that the consumer is
aware that the changes to the package are
authentic and that an illicit
trade package is not being purchased;
brand migrations when a product
line is discontinued (ie the brands
that are most similar in taste
and other characteristics to the discontinued product);
(c) product developments, which
may, for example, be driven by legislative requirements (eg
reductions in tar or nicotine levels)
or may be made in order to
ensure that the product is protected against illicit trade; (d) the
launch of new products and new types
of products, such as snus;
(e) that a particular tobacco
product is less harmful than another tobacco products; and
(f) other distinguishing features
of a particular tobacco product.
Background
[8] The appellant, through its
attorneys, engaged the government in correspondence seeking
clarification on the nature, effect and
extent of the Amendment Act.
From the correspondence, some of which was directed to the highest
office in the Presidency, it appears
that the appellant’s main
concern was with regard to the constitutionality of the definition of
‘advertisement’
in relation to ‘any tobacco
product’ referred to in the Amendment Act. The appellant
considered the definition of ‘advertisement’
to be
unconstitutional to the extent that it limited its right to freedom
of expression, as set out in s 16 of the Constitution.
When this
exchange with government failed to bear fruit, the appellant
approached the North Gauteng High Court for a declarator.
It sought
an order that the impugned provision did ‘not apply to
one-to-one communications between tobacco manufacturers,
importers,
wholesalers and retailers on the one hand and consenting adult
tobacco consumers on the other’. In the alternative
the
appellant sought an order declaring the impugned provision to be
unconstitutional, subject to the latter order being suspended
for 18
months ‘to allow Parliament to enact legislation to cure any
unconstitutionality’ that may be found to exist
in the
provision.
[9] The essence of the
appellant’s complaint is that the impugned prohibition limits
not only the appellant’s right
to engage in commercial
expression,
but also the
right to freedom of expression of tobacco consumers who are denied
the right to receive information concerning tobacco
products. As I
will demonstrate the right of consumers to receive information
concerning tobacco products has been only limited
but not done away
with. The right to freedom of expression concerned in these
proceedings is ‘commercial speech’ and
stands to be
protected in terms of s 16(1) of the Constitution. In
City
of Cape Town v Ad Outpost (Pty) Limited & others
1
Davis J remarked:
‘
To
the extent that [commercial speech] may count for less than other
forms of expression, account of this exercise in valuation
can only
be taken at the limitation enquiry as envisaged in s 36 of the
Constitution.’
This approach is reflected in
British American
Tobacco UK Ltd & others v The Secretary of State for Health
:
2
‘
The
protection of health is a far reaching social policy. The right to
commercial free speech, while less fundamental than political
or
artistic free speech, is protected by the Convention and restrictions
must be justified. However, it will be principally for
the decision
maker to resolve how best the aim can be achieved by restricting
promotion of extremely harmful but historically lawful
products.
While the test of “proportionality” cannot be escaped,
the need for advertising restriction on tobacco products
is not
substantially in issue and we are dealing with a restriction on the
very edge of a much wider restriction that is not challenged
nor is
capable of challenge.’
On appeal
[10] In the appeal before us the
appellant approached its case on two broad bases. First, the focus of
its attack was on whether
the impugned prohibition as it stands was
unconstitutional. If not, whether it could be saved from
unconstitutionality by reading
it down, so as to exclude one-to-one
communication between the appellant on the one hand and the
consenting adult consumers on
the other hand from the blanket
prohibition ─ the so-called constitutionality argument.
[11] Second, the appellant’s
argument traversed the limitation analysis or justification enquiry.
Broadly speaking the appellant
submitted that the first respondent
(the Minister) had failed to make out a proper case to justify the
limitation of its right
to freedom of expression as required by s
36(1) of the Constitution. That part of the appellant’s
argument was discussed
with reference to (a) the nature of the
communication; (b) the degree to which the limitation impacted on the
appellant’s
freedom of expression; (c) the failure by the
Minister to justify the limitation of the right to freedom of
expression and (d)
the interpretative argument, to see if the
impugned provision can be read down so as to allow for one-to-one
communication between
the appellant on the one hand and the
consenting adult consumers of tobacco products on the other.
Discussion
[12] The two lines of argument
will be considered in turn. I deal first with the constitutionality
point. As to the prohibition
of ‘advertising’ and
‘promotion’, the appellant argued that the impugned
prohibition is overbroad and that
if it is interpreted to extend to
one-to-one communications, it would not pass constitutional muster.
Consequently, the appellant
contended that the impugned provision
fell to be struck down as unconstitutional, unless it was found to be
reasonable and justifiable
under s 36(1) of the Constitution. However
the dispute as to whether the prohibition on ‘advertising’
and ‘promotion’
(which I will also refer to as ‘the
impugned prohibition’) limited the appellant’s freedom of
speech fell away
as an issue. Although counsel for the Minister had
initially (in the heads of argument), stood firm that there was no
‘blanket
ban on the appellant’s communication with
consumers’, he changed tack on appeal and accepted that the
impugned prohibition
did limit the appellant’s right to freedom
of speech and the right of the tobacco consumers to receive
information on a one-to-one
basis, contrary to the free speech
guarantees provided for in s 16(1) of the Constitution. The high
court also came to the same
conclusion but found that the limitation
was justified in terms of s 16(1) of the Constitution.
[13] It is clear that under s
16(1)
(b)
of
the Constitution the appellant is entitled to the right to freedom of
expression, which includes the ‘freedom to receive
or impart
information or ideas’, in this case, to consenting adult
consumers of its tobacco products. The appellant is indeed
prevented
from doing so by the impugned provision,
which
forbids commercial communication from being passed to consenting
adult tobacco consumers which the appellant wishes to reach.
The
right to freedom of expression guarantees the intrinsic right of
persons to communicate information and ideas. It is an indispensable
element of a democratic society. It was stated by O’Regan J:
3
‘
Recognising
the role of freedom of expression in asserting the moral autonomy of
individuals demonstrates the close links between
freedom of
expression and other constitutional rights such as human dignity,
privacy and freedom. Underlying all these constitutional
rights is
the constitutional celebration of the possibility of morally
autonomous
human
beings independently able to form opinions and act on them
.
(My
emphasis.)
Advertising allows the
manufacturer, importer and other trader to impart information
concerning its product. It also enables the
consumer to receive such
information and make consequent informed choices. As it was said,
4
‘
[t]he need for such
expression derives from the very nature of our economic system, which
is based on the existence of a free market.
The orderly operation of
that market depends on businesses and consumers having access to
abundant and diverse information’.
Freedom
of commercial expression thus entails not only the right to impart
information but also the right to receive it.
Limitation of the right to
freedom of speech
[14] Given the stance now adopted
by the Minister and the second respondent (the Amicus), the question
for decision in this appeal
has narrowed itself down to whether the
limitation of the appellant’s right to communicate information
concerning its tobacco
products to consenting adult tobacco consumers
and the latter group’s (the smokers’) right to receive
information,
can be
justified in terms of s 36(1) of the Constitution.
[15] It is now settled that any
right in the Bill of Rights may be limited by a 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 relevant factors, including the nature of the right, and the
nature and extent of the
limitation.
(See
Glenister v President
of the Republic of South Africa & others
).
5
[16] The test for determining
whether a limitation is justified requires an overall assessment that
differs from case to case. (See
Christian
Education South Africa v Minister of Education
.
6
)
But each of these cases has one common denominator and that is that a
court is required to engage in a balancing exercise on the
basis of
proportionality. In the present case we are required to consider the
rights of the smokers on the one hand to receive
information
concerning the tobacco product and the government’s obligation
to take steps to protect its citizens from the
hazardous and damaging
effects of tobacco use on the other. In
Christian
Education
Sachs J
said:
‘
[L]imitations
on constitutional rights can pass constitutional muster only if the
Court concludes that, considering the nature and
importance of the
right and the extent to which it is limited, such limitation is
justified in relation to the purpose, importance
and effect of the
provision which results in this limitation, taking into account the
availability of less restrictive means to
achieve this purpose.’
7
[17] It is against this
background that I turn to consider the argument advanced on the
appellant’s behalf on the question
of limitation. As to (a) the
nature of the information the appellant wishes to impart, is fully
set out in paragraph 7 above. Counsel
submitted that the information
that the appellant wished to communicate was factual and truthful
concerning its product. He criticised
the suggestion by the Amicus
that commercial speech should be accorded limited value.
[18] As to (b) the degree to
which the limitation impacts on freedom of speech, the appellant’s
right to impart information
to consenting adult tobacco consumers and
their right to receive the information is indeed limited by the
impugned prohibition.
Justification for the
limitation
[19] Counsel for the appellant
argued that the Minister failed to discharge the onus resting on him
to provide evidence to justify
the limitation of the appellant’s
right to freedom of expression. He submitted that no attempt was made
to provide any specific
data and that the Minister’s case was
based solely on generalised justification. The evidence adduced by
the deponent to
the answering affidavit, Mr Hendrik Andries
Kleynhans, a Director in the Department of Health, was severely
criticised, it being
alleged, amongst other things, that he projected
himself as an expert on certain aspects. He was accused of failing to
distinguish
between the purpose and effect of the limitation and of
misunderstanding the onus resting on the Minister regarding the
justification
of the limitation.
[20] The appellant submitted that
the Minister failed to provide any justification for the impugned
prohibition. I do not think
that this attack is well-founded. In the
answering affidavit the Minister has outlined the context in which
the impugned prohibitions
were enacted. There the following is
averred:
‘
9
The Department has been committed to limiting and preventing the
spread of tobacco usage among South Africans since the early
1990’s.
This policy was initiated in response to growing concerns, not simply
in South Africa, but around the world, about
the extremely harmful
effects of tobacco on those who consumed it and those exposed to
secondary smoke. To this end, the Act was
passed in 1993 and began by
restricting smoking in public places, and certain forms of tobacco
advertising. The Act was amended
in 1999, 2007 and 2008 to further
restrict tobacco usage and advertising in an attempt to meet
government’s concerns about
the harmful effects of tobacco
usage and in particular, to meet the following objectives:
9.1 First, to stem
and prevent the growing incidence of tobacco usage, particularly by
youth;
9.2 Second, to
reduce the numbers of existing smokers;
9.3 Third, to ensure
that those who had stopped smoking, did not begin smoking again; and
9.4 Fourth, to
protect non-smokers from being exposed to second hand smoke.
10 In addition to
these objectives, the Act (as amended by the 2007 Amendment Act and
the 2008 Amendment Act) seeks to ensure that
South Africa complies
with its obligations in terms of the World Health Organisation
Framework Convention on Tobacco Control (“the
FCTC”)
which came into force on 27 February 2005. The Act (as amended), also
seeks to close loopholes in earlier versions
of the Act which allowed
for the subverting of provisions of the Act by individuals and
tobacco companies. Most importantly, the
Act seeks to protect and
promote public health in South Africa which is of national concern.
11 These objectives
remain the focus of government and must be borne in mind when
assessing the validity of the impugned provisions.
In order to do so,
the information that follows, is relevant.’
[21] It is clear that the
Minister’s case for justification is not based solely on facts
as in a courtroom situation,
but
also on strong policy considerations informed by the rampaging
ill-effects of tobacco use. In assessing the question whether
the
Minister has discharged the onus resting on him, regard must be paid
to the context in which the impugned provisions were enacted.
It has
been said that the limitation analysis in a case such as this calls
for a different enquiry. In
Minister
of Home Affairs v Nicro & others
8
Chaskalson CJ put it thus:
‘
This
[meaning the limitation analysis] calls for a different enquiry to
that conducted when factual disputes have to be resolved.
In a
justification analysis facts and policy are often intertwined. There
may for instance be cases where the concerns to which
the legislation
is addressed are subjective and not capable of proof as objective
facts. A legislative choice is not always subject
to courtroom
fact-finding and may be based on reasonable inferences unsupported by
empirical data. When policy is in issue it may
not be possible to
prove that a policy directed to a particular concern will be
effective. It does not necessarily follow from
this,
however,
that
the policy is not reasonable and justifiable. If the concerns are of
sufficient importance, the risks associated with them
sufficiently
high, and there is sufficient connection between means and ends, that
may be enough to justify action taken to address
them.’
[22] In my view this is a classic
example of a case in which matters of fact and policy are
intertwined. It is heavily steeped in
public health considerations
which are addressed by the Act and the Framework Convention, to which
South Africa is a signatory.
These factors make a compelling case for
justification. There are therefore powerful public health
considerations for a ban on
the advertising and promotion of tobacco
products. The Amicus reminded us during argument that South Africa
also has international
law obligations to ban tobacco advertising and
promotion,
and that this
has been the practice in many other open and democratic societies.
They have accepted the link between advertising
and consumption as
incontrovertible and have imposed restrictions on the advertising and
promotion of tobacco products. Besides,
under
the Constitution we are obliged to have regard to international law
when interpreting the Bill of Rights. (See s 39(1)
(b)
of the Constitution and
Glenister
v President of the Republic of South Africa & others
.
9
)
In
Glenister
Moseneke DCJ and Cameron J,
pointed out that it was the Constitution itself that makes it
obligatory for domestic courts to have
regard to international law
when interpreting the provisions of the Bill of Rights and put it
thus:
‘
[T]he
Constitution itself creates concordance and unity between the
Republic’s external obligations under international law,
and
their domestic legal impact.’
[23] South Africa is a signatory
to the Framework Convention on Tobacco Control. There are currently
174 parties to the Framework
Convention.
10
South Africa ratified the
Framework Convention on 19 November 2005. In relation to advertising
the Framework Convention imposes
clear obligations on State parties.
Article 13 of the Framework Convention provides:
‘
Each
Party shall,
in
accordance with its constitution or constitutional principles,
undertake a comprehensive ban of all tobacco advertising, promotion
and sponsorship.’
I do not think that it was open
to the Minister and the legislature to ignore the Framework
Convention when considering what steps
to take to deal with the risks
posed by tobacco use. In respect of international conventions the
Constitutional Court, per Moseneke
DCJ and Cameron J, clearly
indicated the approach to be adopted with regard to conventions that
impose obligations on the Republic.
In
Glenister
the
Constitutional Court dealt with conventions which required State
parties to create anti-corruption units that has the necessary
independence (see para 189). The majority found that those
conventions were binding on the Republic. By parity of reasoning, in
determining whether or not to impose a ban on advertising and
promotion of tobacco products the Minister would have been obliged
to
have regard to the Framework Convention. This Court is therefore
obliged, under the Constitution, to give weight to it in determining
the question of justification or the limitation of the right to
freedom of speech.
[24] As to the public health
considerations that appeared to have informed the ban on advertising,
it is also necessary to have
regard to how the problem has been dealt with in other jurisdictions.
One of the latest cases to which
our attention was drawn by counsel
for the Minister is a Canadian case of
Canada
(
Attorney
General,
v
JTI-MacDonald Corp
2007
SCC 30
para 9. The remarks of McLachlin CJ are apposite:
‘
[T]obacco
is now irrefutably accepted as highly addictive and as imposing huge
personal and social costs. We now know that half
of smokers will die
of tobacco-related diseases and that the costs to the public health
system are enormous. We also know that
tobacco is one of the hardest
addictions to conquer and that many addicts try to quit time and time
again, only to relapse.’
[25] I have already indicated
that any right in the Bill of Rights may be limited by a 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 the relevant
factors,
including the
nature of the right, the importance of the limitation and its nature
and extent. The right to commercial speech in
the context of this
case is indeed important. But it is not absolute. When it is weighed
up against the public health considerations
that must necessarily
have been considered when imposing the ban on advertising and
promotion of tobacco products it must, I think,
give way. The
seriousness of the hazards of smoking far out weigh the interests of
the smokers as a group. As was said in
Canada
(Attorney-General) v JTI-MacDonald Corp
:
11
‘
When
commercial expression is used … for the purpose of inducing
people to engage in harmful and addictive behaviour, its
value
becomes tenuous.’
The remarks of McLachlin CJ in
the
JTI-MacDonald
case quoted above suggest that
the smokers are not a monogenous group. Amongst them there are those
that are trapped in the habit
and wish to get out of it. There are
also those who have given up and would not like to relapse into the
old habit of smoking again.
The impugned prohibition is aimed at
discouraging all tobacco users,
without
exception,
in the interest
of public health.
The purpose, importance, and
effect of the limitation and the availability of less restricted
measures
[26] The Minister has in my view
established that the prohibition on advertising and promotion of
tobacco products is reasonable
and justified. There can be no
question that government has an obligation to protect its citizens
from the ravages of tobacco use.
Smoking is undoubtedly hazardous and
has an adverse effect on health care. In terms of s 27(1) of the
Constitution everyone has
the right to have access to health care
services which the State is obliged to provide and to carry the costs
of,
if necessary. All of
these facts highlight the purpose, the importance and the effect of
the limitation. The impugned prohibition
is targeted at any member of
the public, amongst whom are consenting adult smokers. As I have
already pointed out, there are also
those that are trapped in the
habit of smoking and wish to rid themselves of it and those that have
given up and do not wish to
go back to old habits. Although I do not
consider that there are less restrictive means available to enforce
the impugned provisions,
it is not possible to carve out an exception
from the prohibition of the use of tobacco.
In
the case of
Prince v
President, Cape Law Society & others
12
the Constitution Court found it
impossible to carve out an exception in respect of the use and
possession of cannabis. Similarly,
in the present matter it will be
impossible to carve out an exception in respect of consenting adult
tobacco users (or smokers).
In the circumstances a blanket ban on
advertising and promotion is, to my mind, the only way to address the
issue ─ an objective
the impugned prohibition seeks to achieve.
The Constitutional Court in the
Prince
case endorsed this approach.
13
Interpretative argument
[27] The appellant submitted that
the impugned provision should be interpreted in a way that would
allow for one-on-one communication
to take place. He further
submitted that under s 39(2) of the Constitution a provision in the
Bill of Rights should be interpreted
in a way that would promote the
spirit, purport and objects of the Bill of Rights. However,
reading in does not always offer
a solution as Moseneke J points out in
Daniels
v Campbell NO & others
14
where he said:
‘
However,
this
affirmative duty to “read” legislation in order to bring
it within constitutional confines is not without bounds.
An impugned
statute may be read to survive constitutional invalidity only if it
is reasonably capable of such compliant meaning.
To
be permissible, the interpretation must not be fanciful or
far-fetched but one that reasonably arises from the challenged text
without unwarranted strain, distortion or violence to the language.
This
is so
because
statutes
are:
“
.
. .
products
of conscious and planned law-making by demonstrable and authorised
law making authors and are therefore meant to be of
effect.
By
replacing them as final authority, the Constitution has not deprived
statutes of their worth or force, but has given them new
direction.”’
(My
underlining).
[28] If one has regard to the
information that the appellant wishes to communicate to consenting
adult consumers it is one that
seeks to advertise and promote the
tobacco product. As counsel for the Amicus correctly contended, all
the communications
15
which the appellant wishes to
make are designed, in some way or another, to promote the sale of its
product and thus to maintain
in place the mischief which the Act is
designed to combat. The public health considerations and the
countervailing right to a healthy
environment make a strong case for
the limitation of the right which the appellant seeks to enforce. I
am accordingly satisfied
that the limitation is reasonable and
justified as required by s 36(1) of the Constitution and that it is
accordingly unnecessary
to read in any words so as to render it
constitutional.
[29] It follows from what I have
said that,
subject to what
is said in the next paragraph,
the
appeal must fail.
[30] As far as costs are
concerned, although the appellant was seeking to advance its own
commercial interest in bringing the application,
its challenge to the
constitutionality of the section cannot be described as frivolous or
in any other way inappropriate. Following
the approach in
Biowatch
Trust v Registrar, Genetic Resources & others
2009 (6) SA 232
(CC), especially at paras 23-24, I am of the view that no order as to
cost should have been made in favour of the respondent in
the court a
quo, nor should such an order be made in this Court. The Amicus made
it clear that it did not seek costs and abandoned
the order for costs
in its favour, which order it did not seek in the court a quo.
[31] In the result the following
order is made:
1 Subject to paragraph 2 hereof
the appeal is dismissed.
2 The costs order in the court a
quo is set aside and replaced with the following:
‘
No
order is made as to costs.’
____________________
K K MTHIYANE
DEPUTY PRESIDENT
FARLAM JA (MALAN, TSHIQI JJA
AND McLAREN AJA CONCURRING)
[32] I agree
with the judgment and order of my colleague Mthiyane DP but wish to
add additional considerations in support of his
conclusions. In my
view it is clear that the definition of ‘advertisement’
constitutes a limitation on the right to
receive or impart
information or ideas which is entrenched in s 16(1)
(b)
of the
Constitution. This is so because it prohibits commercial
communications to members of the public.
[33] To determine whether the
limitation can be justified under s 36 it is necessary to be clear as
to what exactly is prohibited,
which means in turn that it is
necessary to know what the correct interpretation of the section is.
Three phrases in particular
have to be considered, that is,
‘commercial communication’; ‘brought to the
attention’; and ‘member
of the public’.
[34] According
to the
Concise
Oxford English Dictionary
16
‘
commercial’
means: (1) ‘concerned with or engaged in commerce’ and
(2) ‘making or intended to make a profit’,
while
‘commerce’ is defined as ‘the activity of buying
and selling, especially on a large scale’. A ‘commercial
communication’ is thus one which is concerned with the buying
and selling, in this case, of tobacco products.
[35] The expression ‘brought
to the attention of’ seems to mean that the activity prohibited
is the taking of the initiative
in making the communication,
otherwise the section would just have spoken of a communication ‘to’
any member of the
public. Thus, if a member of the public
specifically requests information about a tobacco product and the
manufacturer replies,
even though the communication may be a
‘commercial’ one (because it is related to a possible
sale of the product),
the prohibition is not disobeyed. This
conclusion is supported by the words of s 3(1)(
a
) that no
person ‘shall advertise or promote, or cause any other person
to advertise or promote’. The prohibition is
against
advertising and promotion not against answering requests.
[36] By way of comparison
reference may be made to s 4 of the United Kingdom Tobacco
Advertising and Promotion Act 2002 which contains
exclusions from the
general prohibition on tobacco advertising. Section 4(1)(b) provides
that no offence in relation to a tobacco
advertisement is committed
‘if it is, or is contained in, the communication made in reply
to a particular request by an individual
for information about a
tobacco product’. Section 22(2)
(a)
of the Canadian
Tobacco Act of 1997 similarly allows the advertisement of a tobacco
product by means of information or brand-preference
advertising that
is in ‘publication that is provided by mail and addressed to an
adult who is identified by name’.
Article 23 of Chapter II of
Title Three of the Mexican General Law on Tobacco Control allows
publicity and promotion of tobacco
products only when aimed ‘at
adults through adult magazines, personal communication by mail or
within establishments exclusively
for adult access’. The
suggested interpretation of the South African provisions, like those
in the United Kingdom, Canada
and Mexico recognises the need of adult
tobacco smokers to engage in communication about the products.
[37] Case law make it clear that
the expression ‘member of the public’ does not mean ‘any
person’: see,
eg,
S v Rossouw
1969 (4) SA 504
(NC) at
508F-H. The same case (at 509G-H) is also authority for the
proposition that the meaning of the phrase has in every case
to be
ascertained with reference to all the circumstances. I do not think
that the case relied on by the appellants,
Gold Fields Ltd &
another v Harmony Gold Mining Co Ltd & others
2005 (2) SA 506
(SCA) is of much assistance. It concerned the meaning of the
expression ‘an offer to the public’, in the context of
the statutory prohibition in s 145 of the Companies Act 61 of 1973,
of the making of an offer to the public for the subscription
of
shares which was not accompanied by a prospectus. Shares were offered
by Harmony to shareholders in Gold Fields
.
This Court held
that there was no offer to the public or even to a section of the
public. It was held (at 511A-C) that the offer
was made to the ‘owner
of specified limited property’, ie to a person ‘in the
peculiar capacity ─ not shared
by the public at large’,
who alone was capable of accepting it. Different considerations apply
here and the case is therefore
not of much assistance. The
appellants, relying on the
Gold Fields
case, contend that
consenting adult users of tobacco products are in a category not
shared by the public at large. They submit that
there is a ‘rational
connection’ (to use a phrase employed in two Australian cases
cited in the
Gold Fields
case) between the communications they
say they should be allowed to make and the common characteristic of
the persons to whom they
wish to make them, ie adult smokers. What is
of importance in this regard is that the purpose of the legislation
is to discourage
the use of tobacco products because of the serious
health hazards they bring in their train. It is clear that all the
communications
the appellants wish to make are aimed, in some way or
another, at promoting the use of their products. I do not think in
the circumstances
that parliament intended the category of persons
who are not members of the public to be so wide that the purpose of
the Act would
be undermined.
[38] In my view the key to
understanding what the legislature had in mind when it used the
expression ‘any member of the public’
is to be found in
subpara (
c
) of the definition of ‘advertisement’,
that is the ‘trade partners, business partners, employees and
shareholders’
of the manufacturer or importer concerned. See
also s 3(1)(
b
) of the Act which confirms the point just made.
This is an example of a provision inserted by the legislature in
order to make
plain what it intended the ambit of the prohibition to
be.
[39] It follows from what I have
said that the prohibition against advertising tobacco products is to
be interpreted as preventing
a person in the position of the
appellant from making a commercial communication about a tobacco
product on its own initiative
to any person other than those listed
in paragraph (
c
) of the definition of ‘advertisement’
and s 3(1)(
b
), but permitting such a communication to persons
other than those listed where the information contained in the
communication is
specifically requested by the person to whom the
communication is to be made.
[40] I now proceed to consider
whether the limitation of the rights to receive or impart information
contained in the section can
be justified under s 36 of the
Constitution. As has been seen, the right to receive information
about tobacco products is only
limited in respect of such information
sent on the initiative of the communicator and not requested by the
person who receives
it. In my view this limitation clearly passes the
tests for justification set out in s 36. I say this because the
public health
considerations addressed by the Act and set out in the
Framework Convention and the right to an environment that is not
harmful
to the health and wellbeing of all in this country, which is
entrenched in s 24 of the Constitution, clearly constitute powerful
reasons for upholding the limitation.
[41] As far as the right to
impart information is concerned, the right which the appellant seeks
to exercise, it is clear in my
view that as the Amicus correctly
contended, all the communications which the appellant wishes to make
are designed, in some way
or other, to promote the sale of their
products and thus to maintain in place the mischief which the Act is
designed to combat.
The public health considerations and the
countervailing right to a healthy environment to which I referred in
considering the limitation
on the right to receive information also
apply here. I am accordingly satisfied that the limitation set out in
the section is not
unconstitutional.
[42] It follows from what I have
said that the appeal must fail. I agree with the order made by
Mthiyane DP.
________________________
IG FARLAM
JUDGE OF APPEAL
APPEARANCES
For Appellant: GJ Marcus SC (with
him A Cockrell SC and F Snyckers SC)
Instructed by:
Webber Wentzel c/o Savage Jooste
& Adams Inc, Pretoria
Matsepes, Bloemfontein
For Respondents: MR Madlanga SC
(with him N Rajab-Budlender (Ms)
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
Amicus Curiae: P Kennedy SC (with
him J Brickhill)
Instructed by:
Cheadle Thompson & Haysom
Inc,
Johannesburg
Webbers, Bloemfontein
1
City
of Cape Town v Ad Outpost (Pty) Limited
2000
(2) SA 733
(C) at 749D-E and see
North
Central Local Council and South Central Local Council v Roundabout
Outdoor (Pty) Ltd & others
2002
(2) SA 625
(D) at 633D-E.
2
British
American Tobacco UK Ltd & others v The Secretary of State for
Health
[2004] EWHC 2493
(Admin) para 37.
3
NM
Smith & others v Smith & others
[2007] ZACC 6
;
2007 (5) SA 250
(CC)
para 145.
4
R
v Guignard
2002 SCC 14
para 21.
5
Glenister
v President of the Republic of South Africa
2011
(3) SA 347
(CC) para 203.
6
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC) para 31.
7
Christian
Education South Africa v Minister of Education
para
31.
8
Minister
of Home Affairs v Nicro & others
[2004] ZACC 10
;
2005 (3) SA 280
(CC) para
35.
9
Glenister
v President of the Republic of South Africa & others
2011 (3) SA 347
(CC) para 201.
10
This
Convention came into force on 27 February 2005.
11
See
para 47.
12
Prince
v President,
Cape Law Society &
others
[2002] ZACC 1
;
2002 (2) SA 794
(CC).
13
See
para 142.
14
Daniels
v Campbell NO & others
[2004] ZACC 14
;
2004
(5) SA 331
(CC) para 83.
15
See
paragraph 7 above.
16
Concise
Oxford English Dictionary
12 ed
(2011).