President Cyril Ramaphosa’s announcement that SA’s controversial cigarette sales ban will be lifted won’t necessarily stop the Fair-Trade Independent Tobacco Association’s (Fita) legal challenge to the rationality of that ban from going ahead, the association says.
Fita chair Sinenhlanhla Mnguni told Business Day on Sunday that the organisation, which represents SA’s local cigarette manufacturers, would be consulting with its lawyers about a “proposed way forward” with regard to its legal challenge to the cigarette sales ban.
Fita insists the ban should not be imposed under any lockdown level.
“The announcement comes a bit late in the day as the ban has been in place for almost five months, despite our best efforts to try to engage government on this particular issue. Its devastating effects on the tobacco industry along its value chain will be felt for months, if not years to come,” Mnguni said.
It is expected that Fita will seek to negotiate a settlement with the government that will guarantee that the tobacco sales ban will not be reimposed under any lockdown level — the only way those involved in the cigarette trade can ensure they do not suffer any further financial losses if SA returns to more stringent lockdown levels.
On Friday, the Supreme Court of Appeal granted Fita’s application for leave to appeal the Pretoria high court’s dismissal of its efforts to overturn the ban, which is estimated to have cost the country R35m-R38m a day in lost excise duties.
The appeal court’s decision, which came after the high court refused Fita the right to appeal its decision endorsing the legality and rationality of the ban, paves the way for the association to again argue that the courts must impose far more stringent standards in their legal evaluation of the government’s lockdown regulations.
The high court’s ruling dismissing Fita’s challenge to the tobacco sales ban, the only one of its kind in the world, appears to give the government unprecedented levels of power to impose Covid-19 regulations — with almost no prospect of any legal challenge to questionable regulations succeeding.
Judge president Dunstan Mlambo and two of his colleagues found all that was required of the government, in demonstrating that the tobacco sales ban was legally justified, was to show there was a rational connection between the prohibition and its aim of using it to save lives and prevent the spread of Covid-19.
The court wholeheartedly accepted co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma’s argument that the ban was aimed at reducing the strain on SA’s overburdened health system, by reducing the number of smokers vulnerable to more severe Covid-19 outcomes and death.
Fita, however, argues that the law requires the government to show that the Covid-19 regulations it promulgated under the provisions of the Disaster Management Act were “strictly necessary” and not just rationally connected to the aim of reducing the impact of the pandemic.
This, they argue, is particularly so given the huge financial loss and job losses caused by the ban, which University of Cape Town research now strongly suggests has not resulted in large numbers of smokers quitting but instead led to a boom in the illicit tobacco trade.
Meanwhile, the Western Cape high court has yet to deliver its ruling on British American Tobacco SA’s (Batsa’s) cigarette sales ban challenge. Batsa is adamant the ban is unconstitutional.
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