Batsa accuses Dlamini Zuma of playing 'smoke and mirrors' with constitution
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Cape Town - The North Gauteng High Court ruling that upheld South Africa's four-month-old ban on tobacco sales was patently wrong and not binding on the Western Cape division, British American Tobacco SA (Batsa) has argued in its final court papers filed in a parallel challenge to the prohibition.
The country's biggest cigarette maker said its case was about the standard of justification the state had to make when it took a decision that brought limited benefit and great harm.
Whereas the Fair-Trade Independent Tobacco Association (Fita) challenged the ban in the Gauteng court on the principles of administrative law, Batsa is also attacking the constitutionality of the measure.
It argues that regulation 45, gazetted by cooperative governance minister Nkosazana Dlamini Zuma under the Disaster Management Act to ban cigarette sales in response to the Covid-19 pandemic, violated the constitutional rights of all participants in the tobacco value chain.
"Although the minister purports to deny this, her formulaic denial rings hollow," the company said.
It said the ban violates the constitution by undermining the right to dignity enshrined in section 10 because self-autonomy and the right to make independent decisions are inherent in that.
The constitution also guarantees the right to bodily integrity and the right to privacy, which the Constitutional Court has described as "the right to be left alone", Batsa said, submitting that with the ban the minister barged into the private domain of citizens, though she tried to argue that this infringement was "incidental" because regulation 45 was mainly aimed at prohibiting commercial activity.
The company said the case hinged on whether, in the face of the health crisis, smokers still had the right to choose for themselves whether or not to smoke.
"This case is not about whether it is prudent for adults to smoke during the pandemic. It is about who should make the decision as regards whether it is prudent for adults to smoke during the pandemic: the government or the smokers themselves?"
The company said Dlamini Zuma conceded that the onus was on her to justify the prohibition imposed on March 27.
"We submit that the Minister’s justification is – to use a metaphor that is particularly apposite here – an exercise in smoke and mirrors.
"Even if a series of assumptions were to be made in favour of the minister regarding the health risks of smoking in relation to Covid-19, the 'benefits' on which the minister relies would still be heavily outweighed by the harm caused by the prohibition."
The arguments put forth by Batsa overlaps with those advanced by Fita in that the company also argues that the rational basis for the ban falls apart if it does not in fact prevent a substantial percentage of the smoking population to quit, thereby failing to achieve the government's stated aim of preventing the health service from being overwhelmed by smokers with severe Covid-19 symptoms.
Batsa argues evidence that only a fraction of smokers have quit -- resorting instead to a booming black market -- does not only render the regulation irrational, as Fita did, but means it fails the proportionality principle imposed by the constitution.
Several legal experts have criticised the Gauteng high court bench for failing to apply the rationality test correctly. The judges had held that it was not a stringent test and that the minister had cleared it because she had a duty to act, on the evidence available to her, to prevent public harm.
The Batsa challenge will be heard on August 5 and 6.
Fita is due to petition the Supreme Court of Appeal directly by the end of the week after the high court dismissed its application for leave to appeal the ruling.