This week ultra-libertarian Leon Louw, director of the Free Market Foundation, weighed in against the health ministry’s plans to ban all smoking in public places.
 
“If you allow this to happen, you have effectively opened the sluice gates,” said Louw. “No way will the nico-Nazis be satisfied… Is that the society you want?”
 
He was supported by economist Chris Hart, who told the foundation that the proposals were “unconstitutional and ill-considered”. Along with the Tobacco Institute of Southern Africa, they argue that while regulation of smoking in public places is fair enough, the draft regulations go too far.
 
Their arguments are mainly economic and, in the case of Louw, the right of the individual to freedom of choice and minimal state interference. The new law would abolish dedicated smoking areas, effectively banning smoking anywhere except in private homes, where the kiddies that the government is ostensibly trying to protect mostly are.
 
There would be significant knock-on effects argues Louw. In Ireland 11% of pubs were forced to close within four years of a total smoking ban.
 
Louw forgets that for a government which is allowing its health ministry virtually free rein to curb unhealthy habits – resulting in the loss of literally billions of rands of economic benefit that the planned ban on liquor advertising and liquor industry involvement in sport sponsorship will mean –  a knock-on effect on public drinking will probably be welcomed.
 
In reality, it is licensed restaurants and pubs, which will dutifully obey the new laws, that will be penalised. The growing shebeen industry, mostly  unlicensed, will score by ignoring the law. The Township Liquor Industry Association, which says the regulations are more stringent than laws during  apartheid, has demanded an exemption.
 
The critical argument, raised by the Law Review Project (LRP), is that the new law is being made by executive decree, not through the parliamentary process.
 
The LRP says that there is “no longer a legitimate desire to defend the rights of non-smokers, but rather act as a draconian intervention against those of smokers”.
“Smoking is a vice, not a crime,” said spokesman Tebogo Sewapa.
 
The objection to government’s executive fiat in a constitutional state is one that the government should seriously think about. So should the Democratic Alliance.
 
The march that the  government is trying to steal with its regulations is no different from the  Western Cape government’s decree that it will  seize the cellphones of motorists who use them  while driving.
 
Both parties are acting unconstitutionally but believe that their good intentions outweigh constitutional niceties. Both are wrong. The true test of constitutional commitment is acceptance of its strictures when the call goes against one.
 
Strangely, the Free Market Foundation hasn’t whispered a word about the DA trampling upon motorists’ right to due  process and freedom from the arbitrary seizure of property. Is that the society you want, Mr Louw?