Pretoria - Forcing South African smokers to give up tobacco "cold turkey" was an act of cruelty on the part of Co-operative Governance Minister Nkosazana Dlamini Zuma, counsel for the Fair Trade Independent Tobacco Association (Fita) told the North Gauteng High Court in Pretoria on Wednesday.
"To force people to go 'cold turkey' is an act of cruelty," Arnold Subel SC submitted to a full bench of the court, adding the ban amounted to "taking a sledge hammer to beat people into submission".
Subel said the minister had displayed complete disregard for the enormous emotional and physiological strain imposed on those who smoked in an "already stressful enough" situation created by the coronavirus crisis, and its impact on the lives of citizens.
He added there was no realistic prospect of people quitting smoking, as confirmed by surveys on the subject, and this was where the minister's basis for the continued, indefinite ban imposed as part of lockdown regulations came apart.
Unless Dlamini Zuma could eradicate the habit, she could not achieve her stated aim of preventing the country's health services being overrun by a hypothetical 1% of all smokers presenting with Covid-19 symptoms requiring intensive care treatment.
Dlamini Zuma would moreover need to satisfy the court that the benefits of giving up smoking materialised fast enough to substantially ease the feared burden on the health care service.
"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.
Subel argued the court needed not to try to resolve the dilemma of whether there was scientific evidence that smoking made for more severe Covid-19 infection or raised the risk of death, because the minister failed at the first hurdle of arguing the ban would stop people smoking and end the illicit tobacco trade by eradicating demand.
"It might in her world be an answer to stop people smoking, but that is in a make-believe world.
"To imagine in the real world that you are going to stop people smoking through this ban is entirely far-fetched. The golden thread here is an incontrovertible fact that banning is not going to stop the supply."
Fita has asked the court to set aside the ban, which has been in place since March 27. It had asked for the minutes of the meeting of the National Coronavirus Command Council where it was decided to retain the ban after President Cyril Ramaphosa announced on April 23 it would be lifted one week later.
Dlamini Zuma opposed that, saying the council was a Cabinet structure and therefore its discussions were classified.
Subel noted that some of the literature attached to the minister's court papers as evidence for the Covid-19-related dangers of smoking was only written in mid-May, therefore it could not have informed the extension of the ban, but was used after the fact to justify it.
On the day Dlamini Zuma announced the ban would stand, she explained that because the poor rolled and shared cigarettes, smoking could also accelerate the transmission of Covid-19 in townships.
Subel expressed exasperation with the argument, saying the minister failed to credit citizens with much intelligence, and that people were more at risk of infection through raising contaminated cellphones with traces of coronavirus to their faces – yet the government was silent on this patent health concern.
The court hearing has been set down for one day only.
The cigarette trade ban is also being challenged by British America Tobacco SA in a separate case in the Western Cape High Court due to he heard in two weeks' time.