ROSE NKOSI: Nothing about us without us: the folly of tobacco policymaking

Parliament is in the early stages of considering the Tobacco Products and Electronic Delivery Systems Control Bill. The bill was approved by the cabinet in October 2022 and submitted to parliament on December 9. The health department briefed the portfolio committee on health on the bill on May 31 this year.

Amid much fanfare about the potential benefits of the bill from the public health advocates, there has been little discussion about the impact on the informal traders and spaza shop owners who earn a considerable portion of their income from the sale of tobacco products.

A casual visit to any of SA’s townships or rural areas reveals a landscape increasingly blighted by poverty. On any given day, townships are teeming with young people walking the streets without jobs. In the light of the current economic realities and alarming unemployment rates, many have resorted to the informal trade to put food on the table. This reality is apparent at every intersection, where many young people ply their trade selling different wares, including loose cigarettes.

These youngsters represent a growing segment of the much-vaunted township economy. You will also find many mothers or fathers, on just about every open pavement space, selling items ranging from sweets, vegetables and cigarettes to passers-by, with the hope of supporting their families. Many homes have been converted into spaza shops, either operated by the homeowners, or rented out to those who are entrepreneurial, but lack the physical space to operate from their own premises.

Why does all this detail matter? These individuals, in our estimation, make up the largest group of tobacco traders in the country. They serve a market primarily dependent on buying loose cigarettes, because their customers can simply not afford to buy cigarette packs.

Most of these traders make a survivalist living. Many can only dream about earning enough to fully provide for their families, especially as competition has intensified over the past few years. The entry of national retailers such as Shoprite, Pick n Pay, Usave, Boxer and many others in townships has shrunk the share of revenue going to these entities. Covid-19 job losses have made what was already a difficult situation even worse, with many young people who lost their jobs entering the informal market to make a living.

Amid all these struggles, our government has seen fit to advance legislation that looks set to put many of our members and informal traders at a disadvantage. The proposed regulation, which aims to ban the sale of loose cigarette sticks and prohibit the display of tobacco products at the point of sale, is a hare-brained idea that can only come from a government disconnected from its voters.

It does not take a genius to know that informal traders and spaza shops will not be able to meet these two requirements. Prohibiting the sale of loose cigarettes is going to kill an important source of income for informal traders who will struggle to sell cigarette packs. Table-top traders at taxi ranks and other pavement markets will not be able to conceal tobacco products. The result of this is that the tobacco business will become increasingly concentrated in formal retailers in shopping malls and garage forecourts. Disturbingly, those selling illicit tobacco, who, by design, fall outside the regulatory net, will thrive under such circumstances as they have developed channels for the sale of their products outside the law. Those of us working hard for our families and trying to stay within the confines of the law will be criminalised by the bill and harassed or extorted by overzealous law enforcement officers.

From our point of view, the government’s proposals smack of elitism and show disdain for the poor. It appears that our government is comfortable mimicking developed world solutions to tobacco control without considering the unique circumstances of SA. It is well and good that government wants to take a leading role in global tobacco control. However, this should not come at the expense of the mandate to eradicate poverty.

In the recent past, both the government and parliament have lost important court cases where it was found that key constituencies had not been given an opportunity to be heard on legislative proposals. This bill looks set to follow the same course. Throughout the development of the bill, the department of health deliberately ignored our efforts to be heard.

Meetings with the health and planning, monitoring & evaluation departments were abruptly cancelled without explanation.

No information was ever provided on how our sector would be affected by the bill. To this day, our members have never been provided with an economic impact assessment that clarifies how we will be affected. Everything we know about the bill is gleaned from tobacco industry representatives and media reporting.

The portfolio committee on health would do well to heed the Constitutional Court judgment in Mogale and Others vs the Speaker of the National Assembly and Others. In striking down the traditional and Khoi-San Leadership Act 3 of 2019 the top court unequivocally found that parliament has the obligation to create the conditions for affected stakeholders to have their voices heard in matters of legislation.

Parliament must adhere to its own processes to enable public participation, including providing five weeks’ notice of public hearings, conducting educational workshops in areas where hearings are going to take place, providing transportation for members of the public and making proposed legislation available in summary form in at least three languages dominant in the area in which hearings are to take place.

Simply put, the Constitutional Court reaffirmed SA’s democratic values that the government and parliament have seemingly forgotten: “Nothing About the People Without the People”! We expect nothing less than this from the portfolio committee on health in processing the tobacco Bill.

• Ms Nkosi is the president of the SA Spaza and Tuckshop Association and writes on behalf of the association.