Picture: 123RF/GINASANDERS
Picture: 123RF/GINASANDERS

Smokers hoping for a legal reprieve in the state’s ongoing cigarette sales ban suffered yet another blow on Friday after the Pretoria high court dismissed the Fair-Trade and Independent Tobacco Association’s (Fita’s) efforts to seek the right to appeal its refusal to overturn that ban.

A full bench of the high court found that Fita had not only “failed to show that the appeal bears reasonable prospects of success”, but had also “failed to show that some compelling reason exists why the appeal should be heard”.

Fita has confirmed that it will now petition the Supreme Court of Appeal for the right to challenge the high court’s decision, which it insists could have significant implications for how courts evaluate the legality and rationality of the government Covid-19 regulations, imposed under the provisions of the Disaster Management Act.

The ban on cigarette sales — the only one of its kind in the world — has been in place for 119 days now and has had a devastating effect on the tobacco industry in SA and is costing the country billions of rand in excise duties.

British American Tobacco SA will seek to challenge the ban in the Western Cape High Court in august.

Fita has argued that its case is clearly in the public interest — an argument that the high court has rejected, as part of its reasons for ordering the association to pay the government’s legal costs in the case.

Judge president Dunstan Mlambo and judges Daisy Molefe and Annali Basson had previously dismissed Fita’s challenge to the government’s tobacco ban, after finding that there was a “rational connection” between the prohibition on cigarette sales and government’s stated objective of using it to save lives.

Co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma maintains that the ban is aimed at reducing the strain on SA's overburdened health system, by reducing the number of smokers vulnerable to more severe Covid-19 outcomes and death.

In its leave to appeal argument, Fita said the decision to impose the ban four months ago was not informed by any real expert evidence. It says the state has failed to show that there was a definite connection between the ban and significant numbers of SA's eight-million smokers actually quitting. Fita further contends there is ample evidence that, rather than resulting in smokers quitting, the ban has simply resulted in a boom in the illicit tobacco trade.

The court rejected that argument.

“The minister, in our view, persuasively demonstrated that the medical literature that she relied upon established a firm basis upon which to impose the ban in order to save lives and prevent a strain on the country’s healthcare system,” it stated.

It also maintained that it “should be evident that it was never the minister’s objective to ensure that each and every smoker in the republic ceased smoking”.

The court also rejected Fita’s argument that the booming trade in illicit cigarettes showed that the ban was unreasonable.

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