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Government’s appeal against tobacco ban ruling may not lead to further ban – Cogta

File picture: Courtney Africa/African News Agency (ANA)

File picture: Courtney Africa/African News Agency (ANA)

Published Jan 9, 2021


Johannesburg - The government said its decision to appeal the tobacco ban ruling would not necessarily result in the reintroduction of a ban of tobacco products during the lockdown.

This week, the Minister of Cooperative Government and Traditional Affairs (Cogta), Nkosazana Dlamini Zuma, together with President Cyril Ramaphosa, confirmed they would appeal the Western Cape High Court judgment that the ban on the trade of tobacco products during the hard lockdown — aimed at curbing the spread of Covid-19 — was unconstitutional.

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The case was brought by tobacco traders, including British American Tobacco SA (Batsa), after the sale of tobacco products was banned.

It was prohibited for about five and a half months from March 29 until August 18.

The Department of Cooperative Government and Traditional Affairs said the government’s appeal did not mean another ban was on the cards.

“It doesn’t necessarily mean that another ban is on its way. This application is based on what was contained in the previous judgement,” the department’s spokesperson, Lungi Mtshali, told the Saturday Star this week.

He said government decided to appeal the ruling after studying the judgment and finding there were areas the department did not agree with.

In the judgment, the court found that Regulation 45 — which Dlamini Zuma used to effect the ban — could not stand up to constitutional scrutiny, was unnecessary and would not serve objectives set out in Section 27 of the Disaster Management Act.

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The court also found Regulation 45 limited smokers' and vapers' rights to human dignity because it denied them the choice of buying tobacco products.

Batsa, who led the fight against government, chose not to respond. Batsa’s Johnny Moloto said: “We are not commenting at this stage.”

However, the Fair Trade Independent Tobacco Association (Fita), fears the worst.

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Fita’s chairman, Sinen Mnguni, said they were worried government would reintroduce the tobacco ban in the upcoming few weeks.

“At this point, it would be speculative to attribute too much meaning to government’s appealing of the Western Cape High Court decision.

’’However, it is indicative that government may in future want to again implement the ban on the sale of cigarettes and tobacco related products if they feel it is warranted.”

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“At this point we have not received any indication from government that they intend implementing another tobacco ban.

’’However, with the rising numbers and government’s decision to appeal the ruling of the Western Cape High Court, one would not be wrong to think that another ban could be in government’s thoughts.”

He said the reintroduction of the tobacco ban would be disastrous for the tobacco industry.

“We are fearful of another ban coming into place. The industry has still not recovered from the effects of the initial ban and another ban would be nothing short of disastrous.

“It would only serve to encourage the criminals plying their trade in the illicit economy and rob the fiscus and the people of this country of billions.”

Fita also felt government's decision to appeal the high court's ruling was unnecessary.

“We feel that this step by government is regrettable, given that the tobacco ban was lifted some four months back and there seems to have been no impact in the spreading of the virus following the lifting of the ban.

“The many legal challenges government has had to defend during the lockdown period, due to its implementation of many irrational regulations, have meant that government has expended a substantial amount of resources to fighting unnecessary legal battles.

’’This, instead of utilising those resources to combat the spread of the coronavirus and its impact on the citizens of this country.”

Mnguni believes another tobacco ban would signal the start of the end for many within the tobacco industry along its value chain.

“We heard during the five month long ban just how much of an impact the ban had on farmers, manufacturers, informal traders and retailers.

“Another ban would again put the livelihoods of the thousands employed by the industry along its value chain at risk and further, increase the size of an already sizable illicit cigarette market.”

He said medical evidence did not support the ban.

“There are good arguments to be made by both sides, but ultimately the medical evidence, in my opinion, does not support government’s case, nor does the interpretation of the provisions of the Disaster Management Act as was argued in our challenge of the ban.

“We firmly believe that a ban on the sale of cigarettes and tobacco related products was not necessary and this remains our position.”

Mnguni said the tobacco industry has yet to recover from the effects of the ban last year.

“The tobacco industry has not recovered from the effects of the ban and it will take a very long time to do so.

“Illicit cigarettes smuggled through our porous borders from our neighbouring countries have gained traction in the market and our law enforcement agencies do not seem to have an answer in as far as how to deal with this very serious issue, which has the potential to ultimately wipe out the legitimate tobacco industry.”