The Fair Trade Independent Tobacco Association (Fita) says the high court ruling that effectively validated the government’s controversial coronavirus cigarette sales ban is riddled with legal and factual errors, and it plans to urgently appeal it.

Three judges at the Pretoria High Court last week dismissed the first major legal challenge to the government’s tobacco ban, after finding there is a “rational connection” between the prohibition on cigarette sales — now the only one of its kind in the world — and the government’s stated objective of using it to save lives.

Fita, however, argues that the high court should have focused its deliberations in the case on “whether there is evidence that stopping the sale of cigarettes or tobacco products for a limited period of time will have any impact on the fight against the spread or the containment of the virus”.

Fita is adamant that the ban, which is costing SA billions of rand in excise duties, is neither rational nor necessary in the government’s fight against the Covid-19 pandemic.

In their ruling on the case, Judge President Dunstan Mlambo and his colleagues said they are satisfied that co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma made her cigarette ban decision objectively. They found she had considered “all of the relevant medical literature — even evidence that may have been at odds with the view linking high Covid-19 virus progression among smokers when compared with non-smokers”. 

That decision, if it stands, would make it extremely difficult for any other legal challenges to the cigarette ban, including the Western Cape High Court case launched by British American Tobacco (BAT) SA, to succeed.

Dlamini-Zuma has repeatedly argued that the ban was put in place because of evidence that smokers are more likely to suffer more severe Covid-19 complications, including death. She contends that banning the sale of cigarettes will result in a large number of SA’s 8-million smokers quitting and therefore reduce the possible strain of their Covid-19 complications on the country’s already overburdened health system.

But Fita says the medical literature and research Dlamini-Zuma relied on in making these assertions is “not supportive of the ban on the sale of cigarettes” — both in failing to show that the ban has led to smokers quitting and that it has lessened the strain on SA’s already overburdened public-health system.

Costs order not called for

“The court erred in not finding that the ban … is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time they will cease to be smokers,” Fita argues.

In its ruling, the high court acknowledged that cigarettes are still available to smokers through the illicit tobacco trade, but said this reality “is not fatal to the rationality of the ban, given that the minister only needs to show that the means chosen to achieve the intended objective were reasonably capable of achieving it”. 

“In fact, the continuing illicit trade in tobacco products does not negate the overwhelming view that smoking affects the respiratory system and renders smokers more susceptible than non-smokers to the heightened progression of the Covid-19 virus, especially among persons with co-morbidities. such as diabetes. etc”. 

Fita says this reasoning is mistaken in that the illicit cigarette trade is “destructive of the rationality of the ban in circumstances in which smokers are still able to secure the ongoing supply of cigarettes and tobacco products”. Arguably, it says, “a far more serious risk is posed by illicit products being sold and used — products that are not regulated and controlled”.

Fita also argues that the high court was wrong to order it to pay the government’s legal costs in the case, which it contends is clearly a matter of public interest. It further points out that the government has not asked the court to make such a costs order against it.

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