Co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma has criticised efforts by Southern African tobacco producers to appeal the high court’s refusal to overturn the cigarette sales ban as nothing more than “nitpicking”.
But Fair-Trade and Independent Tobacco Association (Fita) advocate Arnold Subel has urged Gauteng judge president Dunstan Mlambo and judges Daisy Molefe and Annali Basson at the Pretoria high court, to reject that argument and contended that courts should not be “unduly deferential” to the state in their evaluation of government’s decision to impose the ban — now the only one of its kind in the world.
This, he argued, was because the government’s decision to impose the ban four months ago was not informed by any real expert evidence. He says the state has failed to show that there was a definite connection between the ban and significant numbers of SA's eight-million smokers actually quitting.
Fita further contends there is ample evidence that rather than resulting in smokers quitting, the ban has simply resulted in a boom in the illicit tobacco trade.
The court reserved judgment on Wednesday on whether to grant Fita the right to appeal against its cigarette ban decision in the Supreme Court of Appeal, with Mlambo stating that the court would deliver its ruling on the case next week.
Fita has raised 10 main grounds of attack on the high court’s dismissal of its cigarette ban challenge, which could have significant implications for how courts evaluate the legality and rationality of government Covid-19 regulations, imposed under the provisions of the Disaster Management Act.
Mlambo and his colleagues dismissed Fita’s challenge to government’s tobacco ban, after finding that there was a “rational connection” between the prohibition on cigarette sales and the government’s stated objective of using it to save lives.
Fita, however, contends that the law clearly shows that the government should be additionally required to show that the ban is “strictly necessary” to reduce the health effects of Covid-19.
Dlamini-Zuma’s advocate, Marumo Moerane, argued on Wednesday that such a requirement would effectively “hamstring” the minister from “imposing any measure to deal with the disaster on which any doubt could possibly be raised”.
“This interpretation would undermine the minister’s attempts to promote and protect the rights to life and healthcare,” he states.
Up until now, the courts have ruled largely in favour of the government in a variety of Covid-19 regulation challenges — an indication, arguably, that the judiciary is reluctant to intervene in state decision-making in response to the increasingly prolific pandemic.
Dlamini-Zuma has repeatedly argued that the ban was put in place because of evidence that smokers were more likely to suffer more severe Covid-19 complications, including death. She contends that banning the sale of cigarettes would result in a large number of smokers quitting and therefore reduce the possible strain of their Covid-19 complications on the country’s already overburdened health system.
But Subel has argued there was an absence of “at least sufficient or credible evidence” from the government, linking the “cessation of smoking ... and a reduced strain on the healthcare system”.
Fita contends that “realistically, the sale of cigarettes and tobacco products cannot be prevented” and argues that smokers denied access to “legal” cigarettes are turning to the illicit cigarette trade — leading to dire consequences, not just for local independent cigarette manufacturers, but to the SA economy itself.
Moerane has, however, argued that Fita has failed to show that its appeal against the judgment by Mlambo and his colleagues had “any reasonable prospect of success”.
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