This is an edited version of Skenjana's article which first appeared in News24 on 30 March 2025.

There are very quick lessons to learn from the latest legislative own goal from government via Health Minister Aaron Motsoaledi following his ill-considered ban of sale of hemp and cannabis food products. 

The first lesson is the need for respect and appreciation of the policy and regulation "making" process by all stakeholders.

Secondly, there must be recognition of the potentially litigious position such decisions can place policymakers/government in, using already scarce state resources.

As such we find ourselves an interesting teachable moment in our current public consultation process for the Tobacco Bill, for which we must go back to our policy-making basics and ensure we do not stay on the same path of a history of bills that went through a hasty public consultation process that eventually left them in a potentially litigious position, should the bill go through.

The bill in its current form fails to address critical issues of Constitutional muster and must therefore ensure precise definitions, particularly differentiating between the different tobacco and nicotine-containing products, cessation and risk-based taxation in the Electronic Nicotine Delivery Systems, such as vapes and Heat-not-Burn product, and Electronic Non-Nicotine Delivery System products.

Failure to address these key definition challenges may create ambiguity in interpretation and could hinder the creation and enforcement of an effective regulation when it is eventually formulated.

Substantive defects in the Tobacco Bill might include issues relating to vagueness and over-breadth, unconstitutional provisions, disproportionate or unreasonable restrictions, conflict with existing laws and potential issues with enforceability.

On the other hand, procedural defects in the bill, may include issues with lack of adequate/comprehensive public consultation, failure to follow Parliamentary procedures, improper delegation of authority (e.g. powers of the minister etc) and lack of clarity in implementation timelines.

In the final assessment of the submissions on the bill, policymakers must ensure that the shape and form of the bill is strong enough to stave off any potential for substantive or procedural misgivings.

Definitions matter, and clarification of these blurry lines during the public consultation process will make the legislation process more efficient and more productive for the purposes of public health promotion as well as in the sustainable function of all affected stakeholders.

There is also the right to trade.  One of the potential issues that may be on the horizon is the potential for litigation in so far as the act and subsequent legislation may be tested on its impact on the tobacco industry's right to conduct business.

In fact, in the case between Bozza Tobacco and the Fair-Trade Independent Tobacco Association (FITA), representing several smaller tobacco producers, we recently saw SARS lose its appeal at the Supreme Court requesting the court to overturn an earlier ruling preventing them from installing CCTV surveillance in tobacco manufacturers warehouses.

In part, the complainants argues that such surveillance would infringe on their rights to fair trade among other rights including rights to property, privacy etc. 

South Africa's history shows the cost of rushed, partisan policymaking. With the country already grappling with foreign policy disputes and other challenges, this is a critical moment for reflection and improvement. 

The door to better policy-making is open – we must walk through it.

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