Picture: 123RF/RUSIAN ZAGIDULIN
Picture: 123RF/RUSIAN ZAGIDULIN

A tobacco lobby group representing southern African cigarette manufacturers is arguing that the ban on the sale of their product is “unconstitutional, unlawful and invalid”, and is preparing to challenge the prohibition in court. 

It is estimated that the ban on the sale of tobacco products cost SA almost R500m in cigarette excise duties in the first two weeks of the national lockdown. The government expected to collect about R14.5bn in excise taxes in 2020/2021

In a letter from its lawyers to President Cyril Ramaphosa and five of his cabinet ministers, the Fair Trade Independent Tobacco Association (Fita) said that regulations, gazetted by the government, did not expressly ban the sale of cigarettes, and that the prohibition was just based on ministerial comments. 

Fita had given the government until noon on Tuesday to respond to its letter. Chair Sinen Mnguni said, however, there had been no reply by late Tuesday afternoon.

“We are in the process of finalising our court papers, which papers will be served on government during the course of tomorrow [Wednesday],” he said.  

“We hope that a court will then hear us sometime this week due to the urgency of the matter.”

The tobacco industry has labelled President Ramaphosa’s ban on cigarettes as draconian in nature. Business Day TV spoke to Johnny Moloto, Head of External Affairs at British American Tobacco SA and Asanda Gcoyi, CEO of the Vapour Products Association of South Africa for an assessment of the impact of the lockdown on the industry.

SA is in the fourth week of a five-week national lockdown, which was imposed in a bid to curb the Covid-19 pandemic. The novel coronavirus has infected more than 3,000 people in SA and left nearly 60 dead.

The virus has caused panic and fear across the globe and brought economies to a standstill. SA’s lockdown has compounded the country’s own economic and social problems.

Just before the lockdown was implemented, trade & industry minister Ebrahim Patel said tobacco products would not be allowed to be sold as they were not essential goods. 

Health minister Zweli Mkhize has also said smoking and drinking alcohol hindered attempts to contain the coronavirus.

Fita wants Ramaphosa and his ministers to explain how the ban of their product limits or delays the spread of the Covid-19 virus, and on what basis they contend that the regulations, properly interpreted, prohibited the sale of cigarettes and what is the specific source of the state’s power to ban it.

It also asked whether the government has considered a limitation on the sale of cigarettes rather than imposing a total ban.

The organisation also asked why there was no ban on the sale of junk food, chocolates, fizzy drinks and sweets, if health was truly a factor.

It pointed out that Mkhize had stated that underlying illnesses such as diabetes, hypertension and chronic renal disease had been the pattern for most of the reported Covid-19 deaths.

“Fita is of the view that the foregoing matters were not considered or if they were, they were not properly considered.

“As a result, aside from the regulations being unlawful and invalid, Fita is of the view that they are also irrational and/or arbitrary to the extent that they excise cigarettes from the basic goods that retailers who are allowed to trade during the lockdown are permitted to sell,” it said.

quintalg@businesslive.co.za