File picture: African News Agency (ANA)
File picture: African News Agency (ANA)

Court rules ban on cigarette sales unconstitutional – ’to avoid a repeat’

By IOL Reporter Time of article published Dec 11, 2020

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Cape Town – Even though the cigarette ban was lifted at the end of August, in a reserved judgment, the Western Cape High Court ruled on Friday that the tobacco sales ban during the hard lockdown was not constitutional.

British American Tobacco South Africa (BATSA) and others had taken the Department of Cooperative Governance and Traditional Affairs (Cogta), President Cyril Ramaphosa and the National Coronavirus Command Council to court in May over the ban of tobacco product sales.

The three Western Cape High Court judges who presided over the case said Regulation 45, which Cogta Minister Nkosazana Dlamini Zuma relied upon to effect the ban, "cannot and does not withstand constitutional scrutiny", News24 reported.

They said ’’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 judges ruled the regulation was ultra vires, which means the government acted beyond its powers, TimesLive reported.

The government had argued that the ban was aimed at preventing intensive-care units being swamped by smokers. BATSA maintained, however, that the government had not justified the ban in law or science.

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 had to act swiftly.

"The respondents were under both a constitutional and moral obligation to act swiftly at a time when very little was known about the Covid-19 pandemic. To mulct them with costs would, in any circumstances, be unjustified," read the judgment.

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

“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 of factors, the court nevertheless ruled it was “in the interests of justice to determine the merits of the case in spite of mootness”, which includes the fact that 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”.


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