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

Dlamini Zuma submits affidavit to Appeal Court, BATSA hoping for ’swift end’ to tobacco sales ban

By ANA Reporter Time of article published Aug 7, 2020

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Cape Town – The contested tobacco ban was essential to help the country come through the Covid-19 pandemic "intact", Co-operative Governance Minister Nkosazana Dlamini Zuma insisted in an affidavit handed to the Supreme Court of Appeal on Friday.

The minister, in responding papers to an application for leave to appeal from the Fair-Trade Independent Tobacco Association (FITA), said there was no reasonable prospect of the court disagreeing with the North Gauteng High Court's dismissal of its challenge to the four-month-old prohibition of tobacco product sales.

There was no compelling reason for the matter to be heard, the minister added, dismissing FITA's contention that the unprecedented ban on a consumer product concerned novel issues in law.

She accused the association of being disingenuous by submitting that the high court had failed to correctly interpret the legal requirement of necessity in the Disaster Management Act for restrictions imposed by the government.

It was thereby trying to shift the goalposts in its appeal bid because it had in the high court primarily attacked the rationality of the ban on cigarette sales.

"Instead, the case brought in the high court was primarily a rationality challenge… Though it now alleges that the meaning of the term 'necessary' is 'central' to this matter, FITA's affidavits in this matter belie this contention."

The minister added that if one were to consider the question of necessity, however, the standard set by the act could never be one of "absolute" necessity as this would handcuff the government in the face of disasters such as the current health crisis.

She then went further and argued that even if FITA were right and the standard was one of "strictly necessary", it had been met because any measure imposed to reduce the strain on the healthcare services would qualify as such.

"Measures that serve to reduce the strain on the health-care system are, in the situation in which we find ourselves, not nice-to-haves. They are strictly necessary if the country is to come through this pandemic intact," she argued.

"As the high court held, the tobacco ban does serve to reduce the strain on the system. It follows that the ban is strictly necessary to protect the public."

Since the ban was necessary in her estimation, she was not guilty of executive overreach and the matter could be argued as one of national interest.

Dlamini Zuma also contests FITA's argument that cigarettes are essential goods, saying they cannot be considered in the same light as electricity and air time.

FITA is due to serve its reply by Tuesday next week at the latest. It secured a small victory when the SCA acknowledged the urgency of the application by directing that papers be filed at short notice.

The principle of necessity has also been placed at the heart of the matter by tobacco industry heavyweight British American Tobacco SA in its parallel challenge to the ban, which was heard by the Western Cape High Court this week.

Alfred Cockrell SC argued on behalf of BATSA and eight other applicants that Dlamini Zuma could not prove that the measure was necessary because there was no scientific evidence that smokers had an elevated risk of falling severely ill with Covid-19.

Hence, he told the court, she could not show that it was necessary to force the country's smoking population of some 8 million adults to stop, to prevent them placing a greater burden on the health-care services.

Judgment was reserved.

Though BATSA went beyond the legal arguments of its industry rival in that it also attacked the constitutionality of the ban, the cases overlap considerably.

Cockrell argued at length that the harm inflicted by the ban on smokers, cigarette makers, tobacco farmers, retailers and the fiscus was disproportionate to the limited benefit of at best 15% of smokers having quit, according to surveys.

In her affidavit to the SCA, the minister skirts the issue by saying that proportionality has no place in a review on the rationality of a measure.

BATSA on Friday said it hoped the court would settle the matter swiftly.

“We look forward to a swift end to this excessive, unconstitutional and unworkable prohibition, which is impoverishing decent citizens, enriching criminals and destroying jobs and livelihoods,” said the company's head of external affairs, Johnny Moloto.

African News Agency (ANA)

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