President Cyril Ramaphosa announced yesterday that South Africa would enter level 3 lockdown on 1 June 2020.
Level 3 brings with it reduced restrictions, including an allowance for the sale of alcohol.
The sale of cigarettes will remain banned, however, with the president stating the ban will remain in force due to the health risks associated with smoking.
At a media briefing on 22 May, Police Minister Bheki Cele said smokers would not be punished for smoking in their homes, but they would be required to present evidence of their cigarette purchase to police when driving with cigarettes in their vehicle.
“It is not illegal to smoke cigarettes in your house. The only problem is when you fail to show us when and where you got the cigarettes,” Cele said.
“Buying cigarettes and the sale is illegal. Until those regulations are removed it will remain an offence to do such.”
MyBroadband spoke to Justice Project South Africa chairperson Howard Dembovsky about Cele’s remarks and asked what South Africans should do if asked for a receipt.
No legal basis
“There is no basis in law for what Minister Cele said regarding people having to provide a receipt for cigarettes they may have in their possession,” Dembovsky said.
“Regulation 27 of the current regulations applicable to ‘level 4’ published in Government Gazette 43258 of 29 April 2020 prohibits the sale of tobacco, tobacco products, e-cigarettes, and related products.”
“It does not prohibit the possession, consumption, or transportation thereof,” he said.
He said that according to the Constitution, South Africans are not required to give an explanation to any police officer as to any circumstance they are found in.
This includes, but is not limited to, a peace officer demanding to see a receipt for any ordinarily legal product in his or her possession.
The exception to this rule is if a police officer suspects that you are in possession of stolen property.
“Considering what Cele had to say, coupled with the fact that cigarettes are consumables that a great many people use, it would be a stretch for any peace officer to try to assert that he or she suspects that a pack of cigarettes is stolen.”
“It is wholly unreasonable, not to mention laughable, that Bheki Cele thinks that anyone would retain a receipt for a box of cigarettes – much less that such person would do so for eight weeks after buying them,” Dembovsky said.
What to do if you are asked for a receipt
Dembovsky said that rather than argue with police when you are asked for a receipt, simply state that you do not have one if that is the case.
“It is difficult for ordinary people to argue the virtues of the law with ignorant peace officers,” he said. “The only thing I can suggest is that people do not attempt to hide their cigarettes.”
“Leave them in plain view and if asked for a receipt, politely point out that you do not keep receipts for cigarettes, cool drinks, chocolate bars, etc.”
“If your cigarettes are ‘confiscated’, insist on a receipt and lay a charge of theft against the peace officer concerned afterwards,” he said.
When asked whether drivers should be cautious about smoking in their vehicles, Dembovsky said , this is not illegal and should not be of any concern.
“To buy into fearmongering that one will be persecuted for smoking in one’s own private property serves no purpose. I reiterate, it is not illegal to be in possession of or to smoke cigarettes,” he said.
“Incidentally, I have yet to hear of a person ploughing into other road users because he or she had one too many cigarettes, yet these clowns in government are set to unban alcohol from 1 June.”
Police do not report to ministers
Dembovsky noted that police and other law enforcement do not report to ministers – they report to the heads of their respective agencies.
“The saddest part of all this is that many law enforcement officials hang on the every word of ministers in the false belief that they report to them, and not to the duly appointed heads of the law enforcement agencies they are employed by.”
“In the case of the SAPS, members thereof ultimately report to the National Commissioner of Police.”
“If such members cannot remember the provisions of law they were taught as recruits, they should consider doing a refresher course, or at least going over their old notes,” he said.
He added that police officers who violate the law during lockdown will be held personally liable.
“If any peace officer chooses to listen to Bheki Cele instead of complying with the law and SAPS standing orders, he or she will attract civil litigation and the National Commissioner of Police has already repeatedly stated in circulars he has issued that the individuals concerned in unlawful behaviour will be held personally liable,” Dembovsky said.