John Hlophe. Picture: TREVOR SAMSON
John Hlophe. Picture: TREVOR SAMSON

The second big legal challenge to SA’s Covid-19 ban on cigarette sales — now the only one of its kind in the world — will only be heard on August 4, following an appeal by state lawyers to Western Cape Judge President John Hlophe.

Presidency spokesperson Khusela Diko confirmed on Friday morning that Hlophe had issued directives that British American Tobacco’s (BAT) application to challenge the constitutionality of the cigarette ban should be heard by a full bench of the Western Cape high court on August 4-5 — more than a month after the June 30 hearing date BAT had announced on Thursday.

Hlophe’s agreement to this delay, which comes as the Pretoria high court is expected to rule on a separate challenge to the rationality of the cigarette ban by the Fair Trade Independent Tobacco Association (Fita), came after state attorney Melanie Faure wrote to him on Thursday. 

In her letter, she confirmed that — while lawyers for the government and BAT had previously agreed on a June 30 hearing date — the latest court papers filed by BAT “contain substantial new matter including affidavits by two new experts”, which the government needs more time to consider.

“We addressed a letter to [BAT’s] attorneys a short while ago informing them that we will be considering the new matter and its ramifications and, after taking instructions, suggesting a way forward,” Faure said.

“We shall do so as soon as practically possible, but our efforts in this regard are constrained by limitations on the availability of some of [the government’s] experts.”

BAT said the decision is inexplicable. “This delaying of justice and a resolution of this issue is inexplicable. By the time the case is heard the ban will have been in place for four-and-half months during which time billions of illegal cigarettes will have been sold,” said Johnny Moloto of BAT SA.

He warned that “thousands of jobs stand to be lost in the economy as criminality becomes the new normal”. 

“We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard [on Tuesday June 30],” he said.

BAT has detailed in its court papers how the ban on cigarette sales, which was put in place by the government in March, has had a devastating effect on its revenue, and on the national fiscus.

Minister of co-operative governance and traditional affairs Nkosazana Dlamini-Zuma, in an affidavit to the court on behalf of herself and President Cyril Ramaphosa, continues to defend the ban, which she contends has resulted in a large number of SA’s estimated 8-million smokers quitting.

Dlamini-Zuma is adamant that the public-health risks associated with tobacco products during the Covid-19 pandemic outweigh the economic loss, which she claims is not as severe as tobacco companies say. She argues that there is clear evidence that smokers are at higher risk from severe Covid-19 complications and death than non-smokers.

SA is now, however, the only country in the world to impose such a cigarette ban, after Botswana issued regulations this week lifting its ban on the importation and sale of tobacco products.