NDZ doesn't have power to prohibit, British American Tobacco SA tells court

29 July 2020 - 20:16 By ERNEST MABUZA
British American Tobacco SA and nine other applicants are challenging the regulation which has banned the sale of tobacco products during the lockdown.
British American Tobacco SA and nine other applicants are challenging the regulation which has banned the sale of tobacco products during the lockdown.
Image: Picture: 123RF/RUSIAN ZAGIDULIN

The lockdown regulation prohibiting the sale of tobacco products violates the rights of every participant in the supply chain for tobacco and vaping products — from smokers, tobacconists and tobacco farmers to manufacturers and retailers.

And the minister who promulgated the regulation does not have the power under the law to prohibit the sale and distribution of the products.

These submissions were made by British American Tobacco South Africa and nine other applicants in a court application before the high court in Cape Town.

They are challenging regulation 45 of the Disaster Management Act, gazetted and signed by co-operative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma. The matter is set to be heard next week.

In heads of arguments submitted this week, counsel for the applicants, Alfred Cockrell and Achmat Toefy, argued their case was different to the challenge by the Fair-Trade Independent Tobacco Association (Fita), which was dismissed by the high court in Pretoria last month.

“The Fita case did not involve a challenge based on the Bill of Rights and the judgment therefore did not address the constitutional issues,” the advocates said.

They said the effect of the regulation was that consumers were denied the choice as to whether they bought tobacco and vaping products during lockdown.

“This naturally impacts on their rights to choose to consume tobacco and vaping products.”

They said the regulation denied consumers the right to purchase tobacco and vaping products for use in the privacy of their homes.

The advocates argued that the regulation deprived tobacconists and farmers of their right to choose a trade, occupation or profession in terms of section 22 of the constitution.

They said tobacco farmers were unable to sell much of their recently-harvested crop and they were unable to utilise their farms in a productive manner.

Manufacturers were not able to use their factories and equipment at full capacity for the manufacturing of tobacco products.

Wholesalers and retailers were unable to sell their stock-in-hand of tobacco and vaping products.

“All of these industry participants are unable to alienate much of their property ... and to realise the value in the property for commercial gain,” said the lawyers for the applicants.

They argued that the minister's power to make regulations under the Disaster Management Act does not include the power to prohibit.

“We submit that regulation 45 should be reviewed and set aside on the basis that the minister was not authorised to prohibit the sale of tobacco and vaping products ... Alternatively, the prohibition on the sale of tobacco and vaping products is not authorised by law and is unlawful in terms of the principle of legality.”   

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