Cape Town - The Supreme Court of Appeal (SCA) has dismissed an appeal by the Minister of Cooperative Governance and Traditional Affairs (Cogta) against a Western Cape High Court order which found that the regulation made during the national state of disaster, prohibiting the sale and export of tobacco products, was unconstitutional and invalid.
Respondents in the matter were farmers, processors, manufacturers, retailers and consumers.
In the SCA, Cogta Minister Nkosazana Dlamini Zuma contended that the reasons for Regulation 45 were to protect human life and health and reduce the potential strain on the health system, and that the medical evidence at the relevant time showed that the use of tobacco products increased the risk of developing a more severe form of Covid-19.
The Minister argued that smokers with Covid-19 had higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non-smokers.
The SCA concluded that the Minister failed prove that, among others, that smoking led to a more severe Covid-19 disease progression, that a temporary ban on the sale of tobacco products during lockdown would reverse or lessen that disease progression and that reduction in smoking would have led to a reduced ICU bed occupancy, relieving the strained health system to cope with Covid-19 admissions.
The first respondent, British American Tobacco South Africa (BATSA), after the lockdown had come into effect on March 26 2020, decided not to challenge the prohibition on the sale of tobacco until it became clear that the Government intended to continue enforcing the ban on cigarette sales.
In the judgment, SCA Judge Ashton Schippers, said: “According to the organisation Tax Justice SA, the ban on the sale of cigarettes during the lockdown resulted in the loss to the national Government of some R35 million per day in excise duties. This means that a total amount of approximately R2.4 billion in taxes was lost during the first eight weeks of the lockdown…
“In conclusion on the justification analysis: The extent to which Regulation 45 limited the rights in issue, particularly given the lack of factual and scientific evidence to support its promulgation, was disproportionate to the nature and importance of the rights infringed, which are foundational to a democracy.”
In terms of costs, where parties were each ordered to foot their own bill by the Western Cape High Court, the respondents made a cross-appeal which was upheld by the SCA.
“That the Minister was compelled to act swiftly in response to the Covid-19 pandemic, did not alter the fact that the Minister acted unconstitutionally. The respondents were compelled to go to court to vindicate their constitutional rights. The Minister filed voluminous answering papers, including expert evidence running into hundreds of pages. It is unfair that the respondents should pay these costs, occasioned by the manner in which the Minister chose to litigate. It follows that the cross-appeal must be upheld with costs,” said Schippers.
Cape Times