Three judges at the high court in Pretoria have dismissed the first major legal challenge to the government’s Covid-19 ban on the sale of tobacco products — and found that there is a “rational connection” between the ban and government’s stated objective of using it to save lives.
Co-operative governance and traditional affairs Minister Nkosazana Dlamini-Zuma has argued that the ban was put in place because of evidence that smokers are more likely to suffer more severe Covid-19 complications, including death.
She contended that banning the sale of cigarettes would result in a large number of SA’s 8-million smokers quitting and therefore reduce the possible strain of their Covid-19 complications on the country’s already overburdened health system.
Judge President Dunstan Mlambo and his colleagues said they are satisfied that Dlamini-Zuma made her decision objectively, after considering “all the relevant medical literature — even evidence that may have been at odds with the view linking high Covid-19 virus progression among smokers when compared with non-smokers”.
“The minister also refers to the reality that SA faces as a developing country that has a shortfall of essential healthcare resources, such as ventilators and ICU facilities.”
According to the department of health, SA has less than half the ventilators needed to treat patients at the peak of the crisis. It is estimated that between 25,000 and 70,000 hospital beds would be required for Covid-19 patients at the pandemic’s peak, and between 4,000 and 14,000 ICU beds.
“The minister asserts that this reality, which is uncontested, places a duty upon her as part of government to take measures that would prevent an unnecessary strain on these scarce healthcare facilities to ensure that Covid-19 patients have access to such facilities,” the judgment read.
Mlambo and his fellow judges also rejected Fita’s argument that the cigarette ban was irrational, because it had not resulted in smokers quitting, as argued by Dlamini-Zuma
The judges repeatedly stressed that they had been called on to evaluate, not whether the cigarette ban was the best or most suitable way for the state to address possible Covid-19 health system threats, but “whether there is a rational connection between the ban ... and the saving of lives through curbing infections and preventing a strain on the country’s healthcare facilities”.
“This, we are satisfied, the minister has been able to demonstrate,” Mlambo stated.
Lobby group Fair Trade and Independent Tobacco Association (Fita) had argued that SA’s status as one of only two countries in the world to impose such a ban clearly undermined the rationality of such a ban; the high court rejected that argument.
“The decision to ban tobacco products was, as explained by the minister [Dlamini-Zuma), taken with reference to the SA context and its preparedness to deal with the Covid-19 virus,” Mlambo stated. “It is of no consequence, nor does it retract from the firm rational basis underpinning the ban, that other countries have not adopted similar measures.”
Mlambo and his fellow judges also rejected Fita’s argument that the cigarette ban was irrational, because it had not resulted in smokers quitting, as argued by Dlamini-Zuma, but had instead resulted in a boom in the illicit cigarette trade.
“Again, the means adopted by the minister in ensuring that smokers ceased smoking may not have been the most effective or the best means possible, but the test for rationality is not concerned with this. In terms of the rationality inquiry, there merely needs to be a rationally objective basis justifying the conduct of the minister. Once this hurdle is overcome, the conduct of the minister is deemed rational,” he said.
“As it was pointed out during oral argument on behalf of the minister, her task involved striking a balance between a number of complex economic, medical and social considerations to protect the public from the devastating effects of the pandemic, and this entailed making informed policy choices, which, in our view, she did in this matter.”
“Our view is that the reality of the illicit trade of tobacco products is not fatal to the rationality of the ban, given that the minister only needs to show that the means chosen to achieve the intended objective were reasonably capable of achieving it,” the court stated.
“In fact, the continuing illicit trade in tobacco products does not negate the overwhelming view that smoking affects the respiratory system and renders smokers more susceptible than non-smokers to the heightened progression of the Covid-19 virus, especially among persons with co-morbidities, such as diabetes, and so on.”
The court further found that Fita’s argument that cigarettes ought to have been considered “essential” because they are addictive “has no merit”. “The fact that a substance is addictive does not render it essential. We therefore find no basis on which to interpret the level 5 regulations as permitting the sale of tobacco products.”
Fita told Business Day that it intends to appeal the high court’s ruling.
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