Lockdown cigarette ban was 'not necessary' and unconstitutional, says WC high court

The government’s decision to ban the sale of cigarettes during the country’s Covid-19 lockdown has been declared unconstitutional.

The Western Cape High Court on Friday ruled that regulation 45 of the Disaster Management Act — under which the cigarette prohibition was put in place — “cannot and does not withstand constitutional scrutiny”.

The court also ruled that the regulation was not necessary, and did not further the objectives of the legislation.

The ruling was in favour of British American Tobacco, and others, in their case against Cogta minister Nkosazana Dlamini-Zuma, President Cyril Ramaphosa and the national coronavirus command council.

The court ruled that each party should pay their own costs because the prohibition on the ban had already been lifted, and because the government was dealing with something completely new and, therefore, had to act swiftly even as science and knowledge were developing.

The court heard argument in the case over two days, on August 5 and 6, and judgment was reserved.

“Two weeks after reservation of the judgment, the ban on the sale of tobacco and related products was lifted. The effect of the ban, prima facie, renders the issues raised during the hearing moot, and a verdict incompetent,” the judgment reads.

However, due to a number for factors, the court nonetheless decided that it was “in the interests of justice to determine the merits of the case in spite of mootness”.

These factors included that:

• the matter was fully argued over two days:
• the issues raised are “complex and vitally important, more so in the light of the continued state of the coronavirus pandemic and lockdown”;
• the scientific research into the link between Covid-19 and smoking “is continuing”;
• the state of disaster has not yet been lifted and there is “a possibility of the infringement complained of in the current matter being repeated in the future”; and
• the matter is important “not only to the parties before court, but also to the public”.

Once it weighed up the arguments, the court found that the respondents — Dlamini-Zuma, Ramaphosa and the national coronavirus command council — “have not shown that regulation 45 reduced or acted to reduce the strain on the health care system”.

“Therefore, the respondents have not shown that regulation 45 was necessary nor that it fulfilled and/or furthered the objectives” of the National Disaster Management Act.

Because of this, the court rules, the regulation was ultra vires, which means essentially that government acted beyond its powers.

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