Judgment reserved: the battle of wills in court over tobacco ban
The Fair Trade Independent Tobacco Association (Fita) argued before the full bench of the high court in Pretoria on Wednesday why it wants regulations prohibiting the sale of tobacco products under level 4 and 3 of the lockdown declared invalid.
Co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma also had an opportunity, through her advocate Marumo Moerane, to explain why the government was persisting with the ban.
After hearing arguments from both parties, the bench headed by Gauteng judge president Dunstan Mlambo reserved judgment on Wednesday afternoon.
In its arguments presented by Arnold Subel, Fita said the government's temporary ban on the sale of cigarettes was designed to stop people from smoking - an act of cruelty designed to beat people into submission.
South Africans have been unable to purchase cigarettes since the start of the nationwide lockdown on March 26 2020. The restaurant business has been severely affected by the lockdown and some of those in the industry who are now jobless have resorted to trading illicit cigarettes as a means of survival.
Subel said none of the reasons put forward by the minister prohibiting the sale of tobacco products could pass rational muster.
He said there were no conclusive studies that Dlamini-Zuma relied upon which showed that the risk of being infected with Covid-19, the risk of being hospitalised and the risk of death from Covid-19 was higher in people who smoked.
He said the World Health Organisation (WHO) stated last month that no peer-reviewed studies had been published to ascertain these facts.
Subel said this meant there were no conclusive studies to rely upon showing smokers were more at risk.
Moerane, however, said Fita's complaint seemed to be that the submissions they made in April, opposing the ban of the sale of tobacco products, were not given sufficient weight.
"There is no basis for Fita to claim the process adopted was irrational."
Moerane also took issue with the claim made by Fita that Dlamini-Zuma relied on new evidence obtained after May 1, for promulgating regulation 27 on April 29, which prohibited the sale of tobacco products on level 4.
"We refer to this as a startling proposition. Fita submits that the record and reasons are replete with material obtained after the decision," he said.
"What Fita seems to be referring to is that the answering affidavit contains material obtained after regulation 27 was promulgated."
However, Moerane said it was necessary to include additional information in her court papers because Fita had on May 29 amended its application to also challenge regulation 45, which prohibits the sale of tobacco products on level 3 from June 1.
"It attests to the fact that additional material was considered in imposing the ban on level 3. This is evidence of good decision making."
Moerane said Fita had also presented a new case before court, claiming that criminalising the sale of tobacco products was unlawful.
"This is a new case. Fita does not challenge the offence-creating regulations under the [Disaster Management] Act. Neither regulation 27 nor 45 creates any offences."