Cape Town - The Fair Trade Independent Tobacco Association (FITA) said on Saturday it would pursue its appeal against an earlier court ruling upholding South Africa's Covid-19 tobacco ban despite government's decision to revoke the measure after nearly five months.
"We will definitely proceed with the appeal," FITA chairman Sinenhlanhla Mnguni said.
President Cyril Ramaphosa on Saturday announced that the ban would fall away at midnight on Monday, along with those on alcohol sales and inter-provincial travel, when the country would move to alert level 2 of the nationwide lockdown imposed in response to the coronavirus crisis.
On Friday, the Supreme Court of Appeal (SCA) granted FITA leave to appeal a ruling on June 26 by the North Gauteng High Court that held Cooperative Governance Minister Nkosazana Dlamini-Zuma had acted reasonably with a view to saving lives when she gazetted the ban under the Disaster Management Act.
The supreme court also set aside a cost order granted against FITA when it unsuccessfully petitioned the Pretoria court for leave to appeal before turning to Bloemfontein. However, it ruled that should FITA choose not to proceed with the appeal, it would carry the costs of the matter.
Mnguni welcomed the decision and said while a trial date had yet to be set, the court had indicated that the matter would be expedited.
The court's decision came just three days after FITA filed papers in reply to those from Dlamini-Zuma, who maintained that temporarily outlawing cigarette sales was critical to government's efforts to contain the Covid-19 pandemic. The minister, an anti-tobacco crusader since her term as health minister in the 1990s, is understood to have resisted Cabinet decision to lift the ban.
FITA has argued that the matter is urgent and in the public interest, as it pertains to the extent of the powers the minister can exercise under the Disaster Management Act. It said the prohibition was a case of executive overreach, hence an appeal would be instructive not just on the legality of the ban, but of other regulations imposed by the government in relation to the state of disaster, which was on Saturday extended for another month to September 15.
"We have always maintained that we are confident in the merits of our case and we are confident therefore that the Supreme Court of Appeal will arrive at a different ruling. We have been advised that the hearing will be expedited," Mnguni added.
The association contends that the ban on cigarette sales is unlawful because the minister failed to meet the legal requirements of rationality and necessity, firstly because it has patently failed to force smokers to quit and secondly because science has not established a link between smoking and more severe Covid-19 infection.
The government faces a similar legal challenge from the wine industry.
On Tuesday, the North Gauteng High Court is due to hear an application by 120 wine farms, led by the nonprofit Southern African Agri Initiative (Saai), to declare the alcohol ban unlawful.
Though the matter has now become moot, SAAI head Francois Rossouw earlier this week also signalled that the case would continue despite an eventual lifting of the prohibition and a loss of urgency.
“We have to go ahead. What if there’s a surge in November and they ban alcohol again? We’ve got to put a peg in the ground against this sort of arbitrary and irrational action,” he was reported as telling the Financial Mail.