Cape Town - The government's claim that smokers cannot challenge South Africa's four-month-old tobacco sales ban because it is primarily aimed at the sellers of tobacco products is spurious, British American Tobacco told the Western Cape High Court on Wednesday.
In her submission in the legal battle with BATSA, Cooperative Governance Minister Nkosazana Dlamini Zuma argued the ban was passed as a restriction on trade and hence the rights of sellers, and therefore any infringement on the rights of smokers to privacy, dignity and autonomy was auxiliary, and could not be raised in court.
Instead, she argued, the case rested only on whether the constitutional right to choose a trade as enshrined in section 22 of the Constitution had been violated here in respect of tobacco companies.
In response, BATSA lawyer Advocate Alfred Cockerill said this was an "extraordinary argument because the whole purpose of the prohibition is to stop smoking".
"We are mystified by that argument," he said. "Our learned friends are desperate to say this is not a case about the rights of consumers but about the rights of the seller."
Cockerill then pointed to the government's oft-voiced explanation that the ban sought to prevent smokers from consuming tobacco and then contracting Covid-19 so severely that they would place a burden on the country's already strained health care system.
"Far from being auxiliary, that is the whole purpose of the prohibition," he added.
Cockerill also took issue with the minister's argument that the ban did not violate the constitutional rights of tobacco growers because they were not prevented from plying their trade and were at worst confronted with a temporary cash flow problem because the prohibition had lowered demand for their product.
"The minister is, from the lofty heights of her desk in Pretoria, saying it is just a cash flow problem," he said.
This was patently not true or helpful, Cockerill continued, because the end result of farmers being unable to sell their tobacco was to go out of business. Moreover, the minister had given no indication of how long the ban, which began on March 27, would remain in place.
The case is being heard over two days. BATSA's legal challenge follows an unsuccessful high court bid by the Fair-Trade Independent Tobacco Association to have the ban overturned.
FITA has now turned to the Supreme Court of Appeal.
African News Agency (ANA)