British American Tobacco South Africa (Batsa) is set to challenge the ban on tobacco products in an urgent application before the Western Cape High Court.
Picture: Courtney Africa / ANA
British American Tobacco South Africa (Batsa) is set to challenge the ban on tobacco products in an urgent application before the Western Cape High Court. Picture: Courtney Africa / ANA

Court to hear challenge to cigarette ban

By Lyse Comins and ANA Time of article published Jun 3, 2020

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Durban - British American Tobacco South Africa (Batsa) is set to challenge the ban on tobacco products in an urgent application before the Western Cape High Court.

It is asking the court to declare invalid and unconstitutional Section 45 of the regulations pertaining to level 3 of Covid-19 gazetted by the government last week.

Batsa, Japan Tobacco International SA and eight other parties with an interest in the industry served notice on the government on Monday that it was filing papers to have the continued ban on cigarette sales set aside.

Law firm Webber Wentzel gave the government until the end of the week to indicate if it planned to file opposing papers.

The applicants include Melinda Ferguson, Keoagile Molobi, Limpopo Tobacco Processors, South African Tobacco Transformation Alliance, NPC, Black Tobacco Farmers Association, Suider Afrika Agri Inisiatief NPC, South African Informal Traders Alliance; La Toscana Investments and Cale Tobacconists.

The respondents are the Minister of Co-operative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, President Cyril Ramaphosa, and the National Coronavirus Command Council.

South Africa is one of only three countries, including Botswana and India, which has banned tobacco during lockdown.

The matter has been set down for June 22. The applicants have asked the court for an order to “review”, “correct” or “set aside” regulation 45, which bans the sale of tobacco products under the Disaster Management Act, as “ unconstitutional and invalid”.

In their founding affidavit, the applicants challenged Dlamini Zuma’s argument that cigarettes could promote the spread of Covid-19 because people tended to share them.

Batsa chief executive Andre Joubert said that by that token, the government should also have banned soft drinks as people often drank from the same bottle.

Turning to Dlamini Zuma’s second argument, that smoking exacerbates the risks associated with the coronavirus, Joubert said there was insufficient evidence of this, as well as studies in France that contradicted the supposed danger.

“There is insufficient evidence to draw any firm conclusions on the relationship between smoking, vaping and Covid-19 that would justify the continued ban on cigarette and vaping sales.”

The company added that Dlamini Zuma did not revert to the tobacco industry before reversing an undertaking given by Ramaphosa in a televised address to the nation on April 23, that the sale of cigarettes would be allowed under level 4 of the lockdown, which took effect on May 1.

It described itself as “astonished” by her decision, but said it did not proceed to court but rather to reason with government as to allowing cigarette sales to resume during level 3.

Despite an assurance from the presidency that government would consult with industries affected by the regulations, the tobacco industry was never consulted.

Batsa also sent a submission to Ramaphosa on May 22, but never received a response.

“Indeed, I do not even know whether these submissions were ever read,” Joubert remarked in the court papers.”

He said the ban on tobacco products had cost Batsa more than R2billion in lost revenue during the first eight weeks of lockdown, and the taxman had lost around R2.4bn in taxes.

However, he said the ban on the legal trade had ignited the illicit market, which according to the Tobacco Institute of Southern Africa cost the country some R7bn in lost excise tax revenue in 2018.

Cartons of cigarettes which sold for between R300 and R450 legally were now being sold for as much as R900, and loose cigarettes were sold for up to R15 illicitly.

Joubert averred that regulation 45 was unconstitutional and had violated the rights of farmers, manufacturers, wholesalers, retailers, tobacconists and consumers.

“It is an unjustifiable limitation on the right of tobacco farmers and tobacconists to choose their trade and it is an irrational interference with the rights of tobacco manufacturers, wholesalers and retailers to practise their trade. It constitutes an arbitrary deprivation of the property rights of participants in the supply chain for tobacco and vaping products,” he said.

He argued that it was unconstitutional that farmers and others in the supply chain had been deprived of their property rights in that they had been unable to extract monetary value from their crops during lockdown.

Joubert also argued that the ban had robbed millions of South Africans who smoke or vape of a form of relaxation while they endured the extraordinary stress of the global pandemic and weeks of being confined to their homes.

The court papers challenge the constitutionality of the ban as an “irrational interference” in the right of tobacco farmers, manufacturers, wholesalers and retailers to choose their trade, and an infringement on the dignity, privacy and physical integrity of smokers.

The Mercury

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