What is the Law on Smoking?

While cigarette use is far less popular than it was just a few decades ago, there are still many South Africans who would consider themselves regular smokers. A 2017 national survey found that around 20% of South Africans (almost 12 million people) admitted to smoking cigarettes. Being such a popular practice, you’d think that smokers would have the freedom to engage in it wherever and whenever they wished. Unfortunately, it is a fairly unhealthy habit that can have negative consequences for children and non-smokers alike. With this in mind, the government has severely restricted this practice in multiple ways. This fact may lead many smokers to wonder – Where can I smoke? What sort of rules apply and what does the law say anyway?

Smoking is chiefly regulated by the Tobacco Products Control Act 83 of 1993. This piece of legislation has imposed many restrictions on smoking and tobacco products in South Africa and each subsequent amendment has clamped down on smoking culture in increasingly stringent ways.

Some of these rules include things like; where smoking is permitted, the prohibition of smoking for the underaged, and the effective ban on tobacco advertisements, to name a few. As such, there’s a lot to unpack here, so let’s focus on the primary limitations one at a time.

Smoking Areas?

Smoking in public places* is illegal in South Africa, however, designated smoking areas may be set up in bars, restaurants, etc. These smoking areas must follow specific guidelines or the owner of the establishment could face penalties such as harsh fines. These guidelines include, but are not limited to –

• A restriction on the total floor area that the smoking area may take up (25%).
• A separation between the smoking area and the rest of the facility including a solid partition.
• Various signs and warnings specifying the location of the smoking area and the harmful effects of smoke on a person’s health.

These designated smoking areas are not required by law and various locations are well within their rights to ban smoking on their premises altogether. Indeed, many restaurants and bars are marketed as being ‘smoke-free’.

*It should be noted that the Act refers to a ‘‘public place’’ as ‘any indoor area which is open to the public or any part of the public and includes a public conveyance’*

Can you Smoke at Work?

Whether or not you’re allowed to have smoke breaks at work is entirely up to your boss. Some employers choose to give smokers a small bit of time to smoke during the day, however, this practice can only take place in designated smoking areas that must follow the aforementioned guidelines.

That said, employers are able to ban smoking entirely while on the premises and there is no legal obligation for them to give their workers smoke breaks.

Additionally, even when you are afforded smoke breaks, your employer is able to request that you make up for that time with additional work after hours or he/she may deduct the ‘time-off’ from your wages.

What does the Law say about Smoking in Public Places?

As mentioned, smoking in public areas is illegal unless you are within a designated smoking area. There are, however, many other restrictions that have been placed on tobacco products in recent years, for instance –

• It is illegal to smoke in partially enclosed public areas – This means that smoking is illegal in public areas such as balconies, verandas, walkways, etc. (At this point you may begin to notice that not all of these regulations are particularly well enforced).
• It is illegal to smoke in a car when a child under 12 is a passenger – Keep in mind, this rule isn’t circumvented by simply rolling your window down. Second-hand smoke is considered to be extremely dangerous for children.
• You may not buy or sell cigarettes if you are under 18 – Many South Africans are still under the impression that the cutoff age is 16, but a 2008 amendment increased the legal age to 18.
• Toys and sweets that look like tobacco products are illegal – Remember those little sugar stick cigarettes from when you were growing up? Well, your kids won’t.
• Advertisements for tobacco products are essentially banned – Almost all forms of promotion are illegal which is why you never see cigarette ads on T.V. Additionally, they may not be set up in stores in a way that allows the consumer to handle the cigarettes before purchase. This is why cigarettes are almost always sold at the counter.
• Packaging is strictly regulated – There are various rules to follow when creating the cigarette box itself. Multiple warnings have to be placed on the container and certain terms are not allowed.

Updated Smoking Laws?

As the negative effects of smoking come under more and more scrutiny, the South African government has begun to take an even harsher stand against smoking culture. A new Tobacco Products Control Bill has been drafted and put up for public comment and, despite pushback, it currently seems as though this bill is well on its way to being finalised.

If successfully implemented, this bill could see major changes for the smoking industry in South Africa including, but not limited to, regulations such as –

• A total ban on smoking in public areas – This means that the designated smoking areas in restaurants and bars that we mentioned earlier would no longer be allowed.
• A ban on smoking in cars when a passenger under the age of 18 is present – Similar to the current legislation, this rule would increase the age limit restriction of the passenger from 12 to 18.
• A ban on displays of tobacco products by retailers – Stores would no longer be allowed to display their tobacco products at the counter. Instead, customers will have to request their cigarettes before purchase.
• Regulations regarding vaping – For a while now, e-cigarettes and related items haven’t really fallen under the heading of ‘tobacco products’ and, as such, they’ve existed in a kind of legal grey area where they’ve enjoyed a lack of any real regulation. These new rules may change that however and vaping could begin to be regulated in similar ways to cigarettes.  

In addition to all these new rulings, smokers also need to remember that municipal bylaws may differ slightly depending on where you are in South Africa. In other words, the local government’s restrictions and subsequent enforcement of the rules could be more severe in some areas than in others.

In Conclusion – What does the Law say about Smoking?

There are many different laws in South Africa that severely restrict the trade and use of tobacco products. Notably, smoking in public areas is illegal unless you are able to find a designated smoking area. These designated areas are, in turn, all regulated with regard to their total size in relation to the establishment, the extent of their enclosure, their labelling, etc.

Designated smoking areas are not mandated by law and it is left to the discretion of the owner to decide whether or not they wish to include such venues. Some restaurants and bars may even choose to ban smoking within their premises entirely.

Smoking areas and smoke breaks may also be allowed at places of work (provided that they follow the same guidelines), although, once again, employers are under no obligation to make such spaces and provide smokers with smoke breaks if they do not wish to.

Smoking is also illegal in a car that contains a passenger who is under the age of 12, likewise, minors under the age of 18 are not allowed to buy or sell tobacco products. New legislation is underway which could see an increase in many of these limitations such as a total ban on smoking in public, a new passenger age limit of 18 when smoking and further restrictions regarding advertisements.

Currently, tobacco products may not be advertised by almost any means and such products are usually only displayed near the store counter. That said, new rules could ban all public displays and would require customers to make requests before the products can be sold. Lastly, e-cigarettes and various related products, which until now have escaped most forms of government oversight, could be regulated in much the same way that cigarettes are.

Municipal bylaws tend to differ slightly in many aspects, and thus, smokers should be aware of both the national policies and the local rules.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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