The future of SA’s controversial cigarette sales ban — the only one of its type in the world — now lies firmly in the government’s hands, after two defeats in the legal campaign to have it overturned.
On Friday a full bench of the high court in Pretoria dismissed the first big legal challenge to the ban by the Free Trade and Independent Tobacco Association (Fita), after finding that there is a “rational connection” between the prohibition on tobacco sales and the government’s stated objective of using it to prevent overburdening SA’s already strained public health-care system.
The decision will be seen as vindication for co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma, who promulgated the regulations enforcing the ban on the sale of tobacco products and has been its most vocal defender.
In the ruling, judge president Dunstan Mlambo and his colleagues repeatedly stress 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 to the country’s health-care facilities.
“This, we are satisfied, the minister has been able to demonstrate.”
The ruling came after Western Cape High Court judge president John Hlophe agreed to a request by state lawyers to delay the hearing of a second urgent challenge to the constitutionality of the ban, bought by British American Tobacco SA (BATSA), by over a month. Lawyers for the government and BATSA had initially agreed that the case would be heard before three judges on Tuesday, but, after receiving the company’s latest legal submissions, the state attorney told Hlophe that the government needed more time.
For reasons that have not been publicly ventilated, he agreed to postpone the urgent case to August 5 and 6. That means, barring an urgent attempt to appeal against the high court in Pretoria’s dismissal of the Fita cigarette ban case, the prohibition on sales is under no immediate threat of legal challenge.
BATSA on Friday issued a statement describing Hlophe’s decision as “inexplicable” and “worrying”. It contended that the six-week delay in the case being heard will “cost SA more than R1.4bn in excise tax and thousands of jobs”.
The company stated that “postponing a case that has been agreed, by both sides, to be urgent is something that we believe is unprecedented and is very worrying”.
Within hours of that statement, Dlamini-Zuma had issued her own, in which she described BATSA’s statement as “misleading” and stressed that Hlophe had made his decision after considering submissions from all the parties involved in the case.
Dlamini-Zuma remains adamant that the ban on the sale of tobacco products has resulted in many of SA’s estimated 8-million smokers quitting the habit and has sought to downplay suggestions that it has, in fact, caused the illicit tobacco trade to flourish.
In court papers filed in response to BATSA’s case, Dlamini-Zuma contends there is evidence that “on the assumption that the current ban on cigarette sales continues for a full year, the result will be an overall annual decrease in sales of about 9-billion cigarettes, from 26-billion down to 17-billion.
“In my respectful submission, the number of quitters and the overall annual decrease in the number of cigarettes sold show that regardless of the increase in illicit activity the current ban will have a very significant positive health impact during the Covid-19 crisis.”
That seems to suggest that Dlamini-Zuma may not be open to attempts by tobacco producers to lobby for a reversal of the ban.
SA’s Covid-19 infections and deaths are soaring at an exponential rate, with the country 18th in the world for confirmed cases of the pandemic.
Given the fact that experts have warned of the possibility of a public health-care system collapse, the minister could argue that reversing the ban — which she says was put in place to avoid such a collapse — may be premature.
With no immediate legal threats to the ban in sight, she is certainly under no pressure to make that call.
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