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

Rational vs fair: How the court reached its decision to uphold the cigarette ban

By African News Agency Time of article published Jun 27, 2020

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Cape Town - The North Gauteng High Court on Friday dismissed the legal challenge by the Fair Trade Independent Tobacco Association (Fita), as fellow industry heavyweight British American Tobacco SA (batsa) said it was blindsided by the Western Cape division's decision to delay hearing its parallel challenge until August.

In a 39-page ruling signed by Judge President Dunstan Mlambo, the High Court, Pretoria, found in favour of almost every argument advanced by Cooperative Governance Minister Nkosazana Dlamini Zuma in defence of the three-month-long ban.

It dismissed the tobacco association's claim that she had acted irrationally in prohibiting the sale of cigarettes during the state of disaster declared in response to the Covid-19 health crisis, saying the ban was properly considered.

"This, in our view, is a properly considered rational decision intended to assist the state in complying with its responsibilities of protecting lives and thus curbing the spread of the Covid-19 virus and preventing a strain on the country’s healthcare facilities."

They agreed with Dlamini-Zuma that the test for her decision was that it was procedurally rational and not that it was fair.

"The requirement of rationality is thus not a particularly stringent test and should also not be conflated with the requirement of reasonableness, even in those cases in which a law or the exercise of a public power infringes a fundamental right."

The judges dismissed the argument advanced by senior counsel for Fita that evidence that the ban had not led to widespread smoking cessation, robbed the measure of a causal link to the stated aim of preventing health services from being overwhelmed by smokers with severe coronavirus symptoms.

Advocate Arnold Subel had told the court that the minister could not show that the ban had achieved the desired effect of preventing people from smoking. Therefore, he argued, that the rationale for the ban was reducing the strain on health facilities became untenable.

"There must be a provable reduction on smoking that will achieve the effect the minister wants to achieve here," he said, or her rationale for the ban disintegrated.

However, the court found that the survey the ministry relied upon by the ministry, which indicated that most smokers had obtained cigarettes despite the ban, also suggested that some had given up.

"Although a study conducted by the University of Cape Town ... and relied upon by Fita shows that 90% of smokers had purchased cigarettes during the lockdown, even this report indicates that a percentage of smokers have given up smoking. 

"Given the link between the adverse effects of Covid-19 and smoking, it can be said that the objective of containing the virus through imposing the ban on the sale of tobacco products was achieved."

The court said it was immaterial whether the state may have achieved a similar aim by a less drastic means. 

It also rejected the argument that the ban was cruel towards smokers, and said the fact that tobacco was addictive did not render it an essential good. “Fita’s argument that cigarettes ought to have been considered 'essential' because they are addictive has no merit."

The ruling came hours after news broke that the Western Cape High Court had delayed the hearing of the challenge to the ban brought by British American Tobacco SA from 30 June to 5 and 6 August.

Batsa described the decision, which followed presentations by the state to Western Cape Judge President John Hlophe, as troubling.

“Thousands of jobs stand to be lost in the economy as criminality becomes the new normal. We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard next Tuesday," said Batsa's head of external, Johnny Moloto.

“Postponing a case that has been agreed, by both sides, to be urgent is something that we believe is unprecedented and is very worrying.”

The Batsa challenge, unlike that mounted by Fita, challenges the constitutionality of the ban. But, a finding that the ban was rational, effectively dooms any argument of unconstitutionality.

The company's papers include an affidavit by UK respiratory expert Dr Jaymin Morjaria, who advanced that not only was there no scientific evidence to support the theory that current smokers fell more seriously ill if they contracted Covid-19, but that peer-reviewed studies increasingly indicated the contrary.

Dlamini-Zuma's spokesperson accused Batsa of misleading the public. Lunga Mtshali said, firstly, there had been a notice from Hlophe that it was not possible to convene a full bench until August. 

Secondly, the introduction of fresh medical testimony in the company's papers meant that the state needed more time to consider the new matter and that it was hence "most unlikely that the matter will be ripe for hearing on 30 June".

He said Batsa had, without consulting the state, written to Hlophe and asked that the matter be heard on June 30 regardless. The state's attorneys then wrote to both Batsa and the judge president asking that the matter "given the urgency and importance" be heard in early August.

Industry insiders were stunned by the double blow from separate divisions of the high court.

Fita was considering whether to appeal the ruling. The company noted that the government had not sought a cost order from the court.

African News Agency (ANA)

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