The Fair-Trade Independent Tobacco Association on Friday approached the Supreme Court of Appeal for direct access to appeal the high court's dismissal of its challenge to South Africa's four-month-old ban on cigarette sales.
The North Gauteng High Court last week dismissed an application by Fita for leave to appeal, holding that the association failed to show grounds for an appeal to be heard and the issues it raised in its case had been all been settled in law by the country's courts.
The court remarked that Fita's claim that the case was in the national interest and that the unprecedented ban on a common consumer good gazetted by Cooperative Governance Minister Nkosazana Dlamini-Zuma, the second respondent in the case after President Cyril Ramaphosa, raised novel issues in law was "a classical shifting of the goal posts" and must be rejected.
But the chairman of Fita, Sinenhlanhla Mnguni, submits in an affidavit to the SCA that case is "overwhelmingly of national importance and interest and pertains to novel and critically import issues of both fact and law". In all, its appeal bid is based on ten legal grounds.
Some go well beyond the cigarette ban and speak to the extent of the minister's powers and the legal thresholds she needs to clear in terms of the Disaster Management Act to impose restrictions on the public, Mnguni said.
"The regulations published by the second respondent in terms of section 27 of the act affect every South African," the affidavit argues.
Mnguni also disputes the high court's view that Fita’s arguments against the ban in the main attacked the rationality of the measure the minister imposed with the stated aim of protecting the country's health services during the Covid-19 pandemic, not on whether she had met the threshold for necessity contained in the law.
Mnguni said the necessity of the minister's actions had formed a central part of the arguments before the court in June, and argued that an objective reading of the law meant that she was obliged to consider whether less drastic means would achieve her objectives.
Dlamini-Zuma has insisted that available medical evidence suggested that smokers would fall more severely ill with the novel coronavirus and hence she had to act to prevent them from overwhelming the already strained health services. The minister moreover claims that the ban would compel smokers, in particular those who are poor, to quit.
But Fita said that evidence suggesting only a fraction of the country's estimated seven million smokers have quit since the end of March, means the ban was irrational because her reasoning had proven flawed.
The association also stressed in the application to the SCA that the contested medical literature Dlamini-Zuma used to motivate the ban, nowhere contained credible evidence that a prohibition would prompt widespread smoking cessation.
Hers was therefore an unobtainable and clearly irrational ambition, Mnguni said.
Like the British American Tobacco SA (Batsa) does in its parallel legal challenge to the ban, Fita points to the fact that the ban has instead bolstered the black market in cigarettes, while robbing legitimate companies of the right to trade and the fiscus of billions of rands in tax revenue, and inflicting suffering on smokers.
It said they had turned to the courts for urgent relief and the matter remained urgent.
The organisation cried foul last week when an official briefing document to ministers surfaced that made plain that government planned to maintain the ban on cigarette sales, along with that on alcohol trade, for as long as other lockdown regulations remained in place.
The Western Cape High Court will next week hear Batsa's arguments, which goes beyond those of Fita by also attacking the constitutionality of the ban.
African News Agency