Pretoria High Court stubs out Fita case, cigarette ban stands
This was confirmed on Friday when the Gauteng High Court, Pretoria, turned down with costs the application by the Fair Trade Tobacco Association (Fita) to reverse the ban on the sale of tobacco products as part of the national lockdown.
The ban, introduced for health reasons as part of the strategy to prevent the spread of Covid-19 and help manage the health risks for those who contract it, has led to an increase in the smuggling and illegal sale of cigarettes.
When amendments to lockdown level 3 regulations were announced, alcohol sales were permitted from June 1 during limited hours, but tobacco sales remained off limits.
The full bench, headed by Judge President Dunstan Mlambo, referred to the state of disaster which has been extended to mid-July in response to the coronavirus pandemic.
He said disasters, by their nature, may result in unforeseen consequences but governments had to implement measures to manage and contain them.
“The Covid-19 pandemic unfortunately bears testimony of this,” he said.
Due to the newness of the coronavirus, government must take measures it deemed necessary to protect the public and to deal with the destructive effects of the disease, the court said.
“We are persuaded by the minister’s submission that Fita’s argument is misconceived as it ignores the context under which the regulations were promulgated,” the judges said, with reference to the Minister of Co-operative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, who has also filed legal papers in another case brought by the British American Tobacco South Africa (Batsa). That case is due in court in August - by which time the ban may have been lifted.
The court found fault with Fita’s argument that cigarettes ought to have been considered “essential” because they are addictive
“The fact that a substance is addictive does not render it essential. We therefore find no basis on which to interpret the level 5 regulations as permitting the sale of tobacco products,” the court said.
On the eve of the move to level 4 of lockdown, President Cyril Ramaphosa had announced cigarettes would be sold, but that decision was overturned after a Cabinet meeting.
Fita challenged the government’s continued ban on the sale of tobacco products under levels 4 and 3 of the national lockdown.
It is understood that Fita will appeal the judgment.
Batsa is meanwhile due to argue their case for government to lift the ban, on August 4 and 5 in the Western Cape High Court. The case was due to be heard this coming Tuesday, but the court informed them it would now only be heard by a full bench in August.
They have been struggling since May to obtain a court date and voiced their unhappiness with the court’s decision.
In an affidavit, Andre Joubert, chief executive of Batsa, argues Dlamini Zuma failed to make a convincing legal argument that the ban was legally necessary or to provide legitimate arguments to show smoking increased the chance of contracting Covid-19, or that smokers would be worse-off than non-smokers if they contracted the virus.
South Africa is one of the few countries to ban tobacco during lockdown.