Earlier this month, the Gauteng High Court interdicted the South African Revenue Service (SARS) from installing 24/7 CCTV cameras in cigarette warehouses. The Free Market Foundation (FMF) celebrates this vindication of the property and privacy rights of South Africans, especially today, 31 May, on the World Health Organisation (WHO)’s World No-Tobacco Day. 

SARS utilised the bogeyman of tax evasion to justify its attempted surveillance of the private, commercial undertakings of tobacco distributors. There is in South Africa a large illicit market in cigarettes that is largely untaxed, which SARS interprets as theft from the government fiscus. 

‘This is a problem of government’s own making,’ says Martin van Staden, FMF Head of Policy. ‘Years of overregulation has made it very costly to operate in the legal cigarette space, and this is even the stated intention of mechanisms like excise taxes. The result, of course, has not been a reduction in smoking, but a turn from the legal to the illegal market.’ 

The 2020 cigarette sales ban implemented by the government during the COVID-19 lockdown represented the biggest single boost to the illicit market. With the ban, lawful trade in tobacco was forcefully halted.  

However, as the FMF warned at the time, this formalistic prohibition would not lead to the desired result. The outcome was that the illicit market quickly overtook the legal market, representing more than half of market share. Since trade was normalised after the lockdown, these numbers have remained. 

‘The illegal cigarette market in South Africa is bigger than the legal market, all due to government action,’ says Van Staden. 

Should the proposed Tobacco Products and Electronic Delivery Systems Control Bill be signed into law, the cost of doing business for legal tobacco manufacturers and distributors will rise even more.  

‘The Bill also brings vaping under the cover of tobacco regulation,’ says Van Staden. ‘The Bill treats smoking and vaping as one and the same, meaning that the chances of a large illegal vaping market springing out of the Bill’s adoption is not unlikely.’ 

While measures like the Bill drive up compliance costs and incentivise black market dealing, it also represents a significant threat to the liberties of ordinary consumers. It is the closest that South Africa has come to a complete ban on tobacco and vaping. 

‘The right to do extremely unpopular, or even socially detestable, things, is part and parcel of a free society,’ says Van Staden, who is a lifelong non-smoker. 

‘It is the responsibility of all of us, as citizens in a free society, to be jealously protective of the freedoms of those whose conduct we disapprove of, adds Van Staden. ‘Otherwise, freedom does not work.’