Court ’bound’ to previous ruling on tobacco sales ban, says Dlamini Zuma’s legal counsel
Cape Town – Legal counsel for Cooperative Governance Minister Nkosazana Dlamini Zuma told the Western Cape High Court on Thursday it was bound by last month's ruling in the Gauteng division that upheld the government's bitterly contested ban on tobacco product sales.
Advocate Andrew Breitenbach, for the minister, said a full bench in the Cape had to follow the legal precedent set by the Fair-Trade Independent Tobacco Association (FITA) case, where a full bench of the Pretoria high court found the minister made a rational, lawful decision to impose the ban in response to the Covid-19 pandemic.
"There is a reason for this and it is called legal certainty," he said.
Dlamini Zuma is opposing an application by British American Tobacco SA (BATSA) to overturn the ban, as well as FITA's application for leave to appeal the Pretoria ruling in the Supreme Court of Appeal.
Judge Tandazwa Ndita put it to Breitenbach that the litigants also had the possibility of awaiting the Supreme Court's decision on FITA's application, but he rejected this, saying the matter was urgent.
Advocate Karrisha Pillay, for the minister, quoted a number of studies and research done that showed smokers were at higher risk of contracting severe respiratory diseases, EWN reported.
She said Dlamini Zuma had a duty to prevent the spread of the disease and to save lives.
“And for these reasons, she makes the point that it is critical to take steps to reduce the burden on an already constrained healthcare system in South Africa.
“Tobacco smoking alone is a risk factor for many respiratory infections and increases the severity of respiratory diseases. Smokers are more likely to develop severe disease with COVID-19,” Pillay said.
The court on Wednesday heard Alfred Cockrell SC argue for BATSA that the minister had failed to pass the legal test of necessity when she gazetted the ban in terms of the Disaster Management Act.
She could not, he argued, prove that it was strictly necessary to prevent smokers from smoking to protect the health system because she had no conclusive scientific literature linking tobacco consumption to a greater likelihood of contracting a severe case of Covid-19 and needing hospitalisation.
Breitenbach said it was implicit that Dlamini Zuma had discharged the onus of necessity, because the high court in the FITA case found that her decision had been entirely rational.
This administrative law argument is considered central in the litigation against the state on the ban, despite BATSA also raising constitutional arguments.
It told the court the four-month-old prohibition has violated the rights of manufacturers and farmers to practice their chosen trade and that of smokers to privacy and bodily integrity.
Cockrell extrapolated from the opinions submitted by the minister's legal team that the potential benefit that would arise if about 1 million smokers quit was the availability of an additional 16.5 hospital beds at any given point during the pandemic.
This, he submitted, did not justify the vast harm she inflicted without proof that those who quit smoking had a reduced risk of falling severely ill.
Breitenbach argued that the country's biggest cigarette maker had misled the court about the extent of the economic harm, as well as the personal suffering of smokers, created by the prohibition, and that this reflected badly on its case.
He said BATSA chief executive Andre Joubert had in his founding affidavit argued that 725 000 people in the tobacco value chain would be potentially adversely affected by the ban, while the actual number was less than half that figure.
Joubert arrived at the higher number because he had wrongly included those employed in the general retail sector in his calculations, Breitenbach continued.
The perceived harm to retailers was mitigated because "those who have obeyed the minister" and stopped smoking, in particular poor households, would be spending the money they saved on cigarettes on other wares in retail stores.
Since they would be paying VAT on these items, the state would also not be losing as much revenue as tobacco companies claimed, he argued.
Cockrell countered that "in the real world which we inhabit", this had not transpired as the vast majority of the country's 8 million smokers were still smoking but paying inflated prices to illicit traders who paid no taxes to the state.
BATSA told the court that the state was losing R35 million a day in excise duties since the ban was imposed on March 27.
But Breitenbach countered that the ill-effects of smoking cost the country R42 billion a year. In the last financial year, the South African Revenue Service collected roughly R47 billion in excise duties, mainly on tobacco products and alcohol.
He stressed that the difficulties the industry currently endured would be temporary because the minister would "lift the ban in full once it is safe to do so".
Judgement in the case was reserved.
African News Agency (ANA)