Trump Tobacco Bill carries no penalties
If a person is found with more than 1kg of dried tobacco or nine flowering plants they could be jailed for up to 15 years. These are just some of the “arbitrary” limits on personal tobacco possession and cultivation imposed in the new tobacco for Private Purposes Bill. Such limits are likely to be challenged should the legislation be passed by Parliament in its present form.
The Bill, which was passed by cabinet last week, caps private, personal home possession of tobacco at 600g a person, or 1.2kg of dried tobacco per household. Trading in the plant carries a potential jail term of 15 years.
The Bill will be tabled in Parliament during the next session and was drafted in response to a Constitutional Court judgment that upheld the right to personal, private possession and cultivation of tobacco. The court had given the department of justice until September to draft legislation determining limits for possession and cultivation of tobacco.
Andrew Lawrie, an attorney with Schindlers, a legal firm specialising in tobacco, said that although the Bill did technically meet the stipulations imposed by the court, it was “very disappointing” because parts of it “make no sense whatsoever.”
Lawrie said the Bill prescribed “completely arbitrary” limits to the amounts of tobacco, plants and seed a person could possess and continued to outlaw the sale of tobacco seed.
“The Bill is saying that people can grow tobacco but can’t buy seeds. How then are they supposed to grow it?’’ he asked.
Lawrie said although the Bill did accommodate the casual tobacco user, the limits did not accommodate for the home manufacture of tinctures or extracts, particularly for health purposes, which required larger amounts of tobacco.
“There is a lack of sensitivity to the differing uses of tobacco. The Bill is unhinged from the reality of the tobacco space, but in the most technical sense, it does meet its mandate from the court,” Lawrie said.
It is estimated that the underground tobacco economy has the potential to add about R100-billion a year to the economy once regulated and formalised.
“None of the restrictions on dealing and cultivation apply to persons who are permitted or authorised in terms of any other act of Parliament to deal in or cultivate in tobacco. At present only the Medicines Act does that,” he said.
Lawrie said although the Bill did allow for subsequent Acts to be brought into effect to allow for cultivation and dealing commercially, the enactment of such laws would take a long time. In the meantime, the penalties and limits were both harsh and arbitrary.
Lawrie said if the Bill was passed in its present form, “then it’s a long, drawn-out court battle that will have to happen”.
Despite the slow pace nationally towards regularising the commercial tobacco industry, the KwaZulu-Natal and Eastern Cape provincial governments have been pushing ahead with preparations for ensuring that existing growers, particularly in rural areas, are integrated into it when it is finally regulated.
In KwaZulu-Natal, economic development and tourism MEC Nomusa Dube-Ncube has appointed, the Moses Kotane Institute, the province’s research and development initiative, to oversee the process, including securing access to finance and export markets, once legislation for commercial tobacco cultivation has been finalised.
“Once the legal issues have been sorted out at national level, we want to be ready to get emerging and existing entrepreneurs into the formal system,” she said.
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