Amid the deluge of litigation the SA government is facing over its Covid-19 lockdown regulations, there is one case that arguably poses the biggest threat to public faith in the state’s reasonableness and rationality: the legal challenge to the cigarette ban.
SA is reportedly one of three countries in the world, together with India and Botswana, to oppose the sale of cigarettes during the lockdown. And the Fair Trade Independent Tobacco Association (Fita) lobby group is adamant that the government has failed to adequately explain why. Fita is seeking to overturn the tobacco ban in the high court in Pretoria, where a full bench of judges will hear its case early in June.
The government had until Tuesday to file the so-called rule 53 record — documents, reports and expert submissions — that led first to the national command council electing to impose the lockdown cigarette ban, and then President Cyril Ramaphosa’s statement that the ban would be reversed and, finally, co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma’s announcement that the ban would, in fact, remain in place.
By all indications, that record of decision will be voluminous: an estimated 2,400 pages.
But it is uncertain, at this stage, how much of this documentation will address the change in the command council’s stance in the days between Ramaphosa’s announcement that the ban would be reversed and Dlamini-Zuma’s statement that it would remain.
Dlamini-Zuma and cabinet secretary Cassius Lubisi have, however, made it clear the record will not include minutes of the council’s deliberations that led to these decisions being made because such minutes are classified. That means any disagreements within the cabinet over the ban will not be open to public scrutiny.
For her part, Dlamini-Zuma has strongly denied that she and Ramaphosa were “at odds” over the cigarette ban decision.
“There is nothing sinister in a change of position following a consultative process,” Dlamini-Zuma stated in court papers, adding that “in fact, the very nature of consultation is that change may result”.
The problem, Fita argues, is that the government has made no effort to explain why it changed its mind, despite repeated attempts by the lobby group to seek answers from officials.
What is clear is this: in the absence of clear government communication about what led to these decisions, politically divisive speculation and innuendo has been allowed to thrive.
Dlamini-Zuma has been forced to repeatedly deny that she and cigarette trader and Fita founder member Adriano Mazzotti were friends, after photographs of the pair on social media sparked accusations that she’d deliberately banned legal tobacco sales to bolster the illicit cigarette trade, of which Mazzotti was alleged to be a part.
Mazzotti has vehemently denied being involved in the illicit cigarette trade and says he only met Dlamini-Zuma twice. He says he provided her with contact information for an affordable T-shirt manufacturer for her ANC election campaign but did not sponsor these T-shirts or fund her campaign.
Author Jacques Pauw, whose book The President’s Keepers contains claims that Mazzotti had provided Dlamini-Zuma with election paraphernalia, told Business Day he did not think the minister “is in bed with Mazzotti or tobacco”.
“He gave her clothing for her December 2017 campaign but there is no evidence of links afterwards,” he said.
So what exactly has motivated the state’s cigarette ban?
During his announcement that SA would enter level 3 of its lockdown, Ramaphosa stated that the sale of cigarettes would remain prohibited “for health reasons”.
Based on what officials have publicly stated, these “health reasons” appear to range from a desire to prevent a drain on health resources to concerns about the possible sharing of cigarettes.
But while the purchase and sale of cigarettes has been outlawed, smoking itself has not. Arguably, that means the sharing of cigarettes is an even greater risk now, because of limited availability.
Recently released research also suggests that 90% of SA’s 8-million smokers are continuing to smoke — and that means a huge boost for the country’s illicit cigarette trade.
Johann van Loggerenberg, who spent years investigating the tobacco industry as part of his work at the SA Revenue Service, said the ban could have a devastating effect on local cigarette manufacturers “and they will ultimately shut down if the ban continues for much longer”.
“That will leave about 20% of the market wide open for the real crooks to step in,” he said.
And that’s the rub: this ban is not reducing a health risk for smokers. Instead, it is forcing them to seek out illicit cigarettes at hugely inflated prices — and to put themselves at risk doing so.
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