Tobacco ban: It's wrong to suggest judiciary is captured
Together with millions of other South Africans, I had hoped Judge President Dunstan Mlambo and his two co-judges would understand smokers’ plight and order the ban be lifted.
But when the bad news came on Friday afternoon, I did not think the result was because “the judiciary was captured”, as some have suggested.
This is a phrase being used more frequently these days when a judgment does not suit us.
I know the ban on cigarettes is an emotional issue, but I did not expect people to vent to such a degree following the outcome.
Some called it “political interference in our courts”, while many were convinced the judiciary is captured.
It made me think about the other groundbreaking judgment a few weeks earlier, when Reyno de Beer and his organisation Liberty Fighters Network scored a huge victory - for now at least because the matter is set to be appealed.
When Judge Norman Davis overturned the bulk of the lockdown regulations and ordered the government to take another look at their constitutionality, millions of South Africans hailed the judgment. There was no talk of the judiciary being captured.
A word which is also emerging more and more with legal challenges concerning the Covid-19 regulations, is “rationality”. This is obviously a word the judiciary takes seriously.
Judge Davis, in the De Beer judgment, also used the rationality test when he decided on the matter. He found that, in some instances, the lockdown regulations were not rationally connected to limiting the spread of the virus.
This test was also used in the legal challenge brought by the Fair Trade Independent Tobacco Association. One of Fita’s arguments was that Minister of Traditional Affairs and Co-operative Governance, Dr Nkosazana Dlamini Zuma, in her capacity as the minister responsible for the disaster management regulations, acted irrationally in prohibiting the sale of tobacco products.
But the full Bench dismissed this and said the decision was rational and intended to assist the state in complying with its responsibilities of protecting lives and thus curbing the spread of the Covid-19 virus.
The court said it held the view that a vigorous attempt to contain the spread of the virus at all costs had to be made. This, especially bearing in mind the high Covid-19 mortality rates and the fact that, with limited resources and an overburdened health-care system, we are ill-equipped to survive the full brunt of the pandemic at its peak if no concerted efforts are made to contain the virus.
In the De Beer judgment, Judge Davis questioned the rationality behind various aspects of the lockdown regulations, especially under levels 4 and 5. He said: “To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade, but were one to step a foot on a beach, it will lead to rampant action.”
One can ponder the judgment and question how these findings and others were reached based on the rationality test. But to suggest the Bench has been captured is incorrect.
It might be a good thing if a higher court took another look at the issues on appeal. It will also be interesting to see how another court would interpret the rationality test pertaining to the two cases.
For now, we will have to live with the findings.
* Zelda Venter is Pretoria News's senior court reporter.