Lawyers representing co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma faced some tough questions over the government’s controversial decision to ban the sale of cigarettes during lockdown — and the minister’s insistence that this would result in many of SA’s 8-million smokers quitting.
The Fair Trade Independent Tobacco Association (Fita), which represents SA’s local cigarette manufacturers, has gone to court to question the rationality of the cigarette ban. Its case comes as the government fights nine other legal challenges against the national coronavirus command council, the Disaster Management Act that governs how regulations are formulated and put into effect, and the rationality of the regulations themselves.
On Monday, Dlamini-Zuma’s lawyers filed an application to appeal a scathing Pretoria high court ruling that found that the government’s level 4 and 3 regulations, were largely “not rationally connected to the objectives of slowing the rate of infection” of Covid-19.
In Wednesday’s hearing, Pretoria high court judge Annali Basson — one of three judges who will decide whether the regulations prohibiting cigarette sales are irrational and should be set aside — questioned Dlamini-Zuma’s advocate, Marumo Moerane, on whether the ban had actually resulted in smokers quitting.
“As I understand the papers, the purpose of the tobacco ban is to ensure that our health system is not overburdened, I accept that,” she said. “But the tobacco ban is directed at the sale of cigarettes ... in other words, people can continue to smoke.”
The judge then asked how the ban on the sale of cigarettes achieved the purpose of stopping people from smoking, particularly given that “some people are fortunate enough to stock up on cigarettes, so they are going to continue to smoke”.
“Those who cannot, can in many instances, access the black market and buy cigarettes there. So my question simply is: how does the ban on the sale of cigarettes, in circumstances where people are not going to stop smoking, achieve the purpose of alleviating the impact on the health system?”
Moerane answered that the purpose of the ban was to reduce the availability of cigarettes. While admitting that it could not totally restrict availability, he reinforced Dlamini-Zuma’s stance that there was evidence that many SA smokers had quit.
Fita argues that the minister’s decision is irrational and cannot be shown to have reduced the spread of the Covid-19 pandemic. Instead, they contend, it has caused a boom in the illicit cigarette trade.
Dlamini-Zuma has requested that, should the regulations banning be found to be irrational, the high court should refer them back to her for “reconsideration”, a proposal that Fita has rejected. The association argues that she has displayed irrationality and bias in her decision-making about the cigarette ban and can no longer be trusted to make a reasonable decision on the issue.
Moerane on Wednesday argued that Dlamini-Zuma could not be expected to produce “proof” of the “necessity” of a cigarette ban.
“If the minister was to wait for such definitive proof, she would almost certainly be in breach of her constitutional obligation to promote and protect the rights to life and health care, as she would have failed to be sufficiently proactive in preventing risk to the public from materialising.”
Moerane then repeated that argument, prompting Dunstan Mlambo, the judge president of the Gauteng division of the high court, to interject: “Mr Moerane, I’ve been very patient but I’m sure it has to stop somewhere”.
While the government argued that the World Health Organisation (WHO) has warned that smokers were greater risk of severe Covid-19 outcomes, Fita’s advocate, Arnold Subel, contends that the WHO has itself noted that there are no peer-reviewed studies about the risk of hospitalisation and deaths for Covid-19 for smokers. This, Subel argues, shows that the state is relying on inconclusive studies to justify an economically devastating and “draconian” ban on tobacco sales.
After Mlambo questioned him about Subel’s assertions, Moerane said the government disputed that the evidence on links between severe Covid-19 outcomes was inconclusive. It remained the government’s position that smoking put people at greater risk from Covid-19, he said.
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