THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case 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:
Subject to paragraph 2 hereof the appeal is dismissed.
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─
(i)
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;
(b)
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 & others1 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.’

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.

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

2 British American Tobacco UK Ltd & others v The Secretary of State for Health [2004] EWHC 2493
(Admin) para 37.

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

3 NM Smith & others v Smith & others 2007 (5) SA 250 (CC) para 145.
4 R v Guignard 2002 SCC 14 para 21.

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

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 (4) SA 757 (CC) para 31.
7 Christian Education South Africa v Minister of Education para 31.

[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.

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.

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 & others8 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

8 Minister of Home Affairs v Nicro & others 2005 (3) SA 280 (CC) para 35.

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

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.

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

11 See para 47.

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 & others12 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 & others14 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

12 Prince v President, Cape Law Society & others 2002 (2) SA 794 (CC).
13 See para 142.
14 Daniels v Campbell NO & others 2004 (5) SA 331 (CC) para 83.

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 communications15 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

15 See paragraph 7 above.

(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:
Subject to paragraph 2 hereof the appeal is dismissed.
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
‘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

16 Concise Oxford English Dictionary 12 ed (2011).

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

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

20 June 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

BATSA V Minister of Health (463/2011) [2012] ZASCA 107 (20 June 2012)

The Supreme Court of Appeal (SCA) dismissed an appeal against an order
made by the North Gauteng High Court, Pretoria. This appeal is concerned
with the proper interpretation of s 3(1)(a) of the Tobacco Products Control Act
83 of 1993 as amended by the Tobacco Products Amendment Act 63 of 2008,
more specifically the prohibition on the promotion and advertising of tobacco
products.
The essence of the appellant’s complaint is that, in terms of s 16(1) of the
Constitution, 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.

The question before the Court was whether 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, as required by s 36(1) of the
Constitution. The SCA held that in the present case they 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.

The SCA found that there exists powerful public health considerations for a
ban on the advertising and promotion of tobacco products and that the
seriousness of the hazards of smoking far out weigh the interests of the

smokers as a group. The SCA further held that South Africa also bears
international law obligations to ban tobacco advertising and promotion.

As a result the SCA found the respondent was able to establish that the
prohibition on advertising and promotion of tobacco products is reasonable
and justifiable as required by s 36(1) of the Constitution.
With regard to costs, the SCA held that 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
For these reasons the SCA made the following order:
Subject to paragraph 2 hereof the appeal is dismissed.
The costs order in the court a quo is set aside and replaced with the
following:
‘No order is made as to costs.’