Why BAT SA's cigarette ban challenge is not the same as Fita's failed bid
The court challenge by multinational cigarette company British American Tobacco SA (BAT SA), set down for hearing in August, raises several constitutional challenges that government has not dealt with in last month's failed bid to overturn the ban on the sale of tobacco products during the Covid-19 lockdown.
The Fair Trade Independent Tobacco Association (Fita) went to the Pretoria High Court to challenge the rationality of the decision to ban the sale of cigarettes.
The association argued that cooperative governance and traditional affairs (Cogta) minister Nkosazana Dlamini- Zuma’s reasons for prohibiting the sale of tobacco products did not pass rational muster. This was dismissed, with the court finding it was rational, that it was in line with the Cogta minister’s legal powers, and that she had consulted sufficient medical evidence on which to base the decision.
Mike Evans, the lawyer representing BAT SA and others who have joined the action headed for a full bench of the Cape High Court, said there are different arguments at stake.
“We have raised a number of constitutional challenges. Fita did not do so.
"Ours have focused on the rights to privacy, dignity, bodily and psychological integrity and property, and the right to freedom of trade.
“We have also tried to show that the minister [Dlamini-Zuma] has not been able to prove the limitation on those rights is reasonable and justifiable,” said Evans.
While Fita’s application mainly revolved around the irrationality of Regulation 45, which prohibits the sale of tobacco, BAT SA’s case, Evans said, puts more stress on the requirement that the regulation must be "necessary" to meet the objects set out in the Disaster Management Act.
“The necessity threshold is a tougher one for the minister to cross than a rationality threshold. They [Fita] raised that issue, but not nearly as strongly as we have done.
“We have shown in our papers that the issue is not whether smoking contributes to a more severe form of Covid-19, but rather whether stopping smoking prevents a more severe form of Covid-19. The answer is a definite 'no'. Once that question is asked, it is clear the regulation does not meet the 'necessity' test,” Evans said.