A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations
A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations
Author: Mendy Khumalo
ISSN: 1996-2118
Affiliations: LLB LLM (UKZN); Lecturer, IIE Varsity College
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 191 – 208
https://doi.org/10.47348/SACJ/v37/i2a2
Abstract
The Tobacco Products Control Amendment Act 63 of 2008 introduced fundamental changes to the Tobacco Products Control Act 83 of 1993. This Amendment Act inserted ‘promotion’ in its definition section and prohibits such promotion in s 3(1)(a). The legislature defines ‘promotion’ as the practice of bringing awareness and inspiring a positive attitude towards a tobacco product for the purpose of encouraging tobacco use. The proposed Tobacco Products and Electronic Delivery Systems Control Bill provides for an even broader definition by including any form of communication, recommendation or action with the aim or effect of increasing the awareness of a tobacco product. The legislature’s definition of ‘promotion’ in the Tobacco Products Control Act, and the even more encompassing definition in the Tobacco Bill, effectively results in the criminalisation of customary practices which fall within the ambit of the aforementioned definitions. It is argued in this paper that the Gongqose judgment gives rise to a possible defence for persons charged with promoting snuff through customary practices.‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’