Government makes second attempt to delay tobacco ban court case
State attorney says it is impossible for government’s reasons and record of decision to be ready on Wednesday
The government has made a second attempt to delay the hearing of the first major legal challenge to the controversial cigarette ban, appealing to court again for the matter to be delayed.
The government, which is facing an increase in court cases related to the national lockdown, is also facing another legal challenge from British American Tobacco SA (BATSA), supported by Japan Tobacco International, as well as groups and organisations representing the tobacco value chain countrywide, in the Western Cape High Court.
The group led by BATSA wants the court to declare the government’s regulations prohibiting the sale of tobacco products unconstitutional and invalid, and to have them reviewed and set aside. The company says the ban has resulted in it losing revenue of more than R2bn.
The government appears intent on opposing that application, but is also using it as a basis to argue for the postponement of the Fair-Trade Independent Tobacco Association’s (Fita's) matter.
State attorney Arista Wasserman, who last week tried and failed to persuade the high court in Pretoria to postpone the hearing of the Fita cigarette ban challenge for at least two weeks, on Tuesday made another appeal to judge president Dunstan Mlambo for the hearing of the matter to be delayed.
The matter is due to be heard on June 9-10 before Mlambo and two other judges.
“At first blush this might seem like a delaying tactic on the part of the president and the minister,” Wasserman stated in a four-page letter.
“This is not so. It is an attempt to ensure that the lawfulness of Regulation 45 (which governs the cigarette ban under lockdown level 3) is justly determined.”
According to Wasserman, co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma should be given additional time to provide a record of the government’s decision to uphold the cigarette ban under level 3 through Regulation 45.
Dlamini-Zuma has already provided a record of the decision that the government argues justified Regulation 27, which continued the cigarette ban under lockdown level 4. In that record, which has been criticised for being inaccurate and selective in its interpretation of the risks of Covid-19 to smokers, the minister had contended that the cigarette ban would result in a “sizeable number” of South Africans quitting the habit.
“The poor and youth are particularly likely to quit,” she said.
In addition to stressing that the government’s cigarette ban decision was driven by health concerns, Dlamini-Zuma sought to undermine any suggestion that the illicit cigarette trade was booming as a result of the ban. She argued that the only way to deal decisively with that trade was to ensure that demand for cigarettes was reduced.
“If fewer South Africans smoke, then the consumer demand for illicit cigarettes will fall and this will be accomplished by a decline in the illicit trade.”
Wasserman said it is impossible for the government’s reasons and record in respect of the level 3 tobacco ban “to be properly prepared before Wednesday and incorporated into the minister’s answering affidavit in the Fita matter. Especially given the pressures the minister is under to manage the national state of disaster.
According to Wasserman, “if reasons and a record are not filed in the Fifa application in respect of Regulation 45, this court will have less information on which to determine the lawfulness of Regulation 45 than the Western Cape Division of the High Court”.
“This is undesirable as it may lead to inconsistent judgments and to unnecessary appeals.”
Fita chair Sinenhlanhla Mnguni told Business Day on Tuesday that the association would “strenuously oppose” the government’s efforts to further delay the hearing of its case.
“This case has been delayed enough,” he said.
On Friday, Fita contended that Dlamini-Zuma’s attitude in relation to the impact of the ban both on smokers and SA’s growing illicit tobacco industry was “high-handed and amounts to executive overreach”.
Mnguni said the ban was “out of step with the vast majority of countries throughout the world” and has slammed the government for its alleged failure to rationally explain why it imposed the ban in the first place.