The Fair-Trade Independent Tobacco Association (Fita) on Wednesday said it has agreed to withdraw its supreme court appeal on the country's bitterly contested lockdown ban on tobacco sales, nine days after the prohibition was lifted.

According to an agreement through lawyers with Cooperative Governance Minister Nkosazana Dlamini-Zuma, the legal sponsor of the 144-day ban, she would invite public consultation should government again see a need to ban tobacco sales as part of the country's response to the Covid-19 pandemic.

The minister did not undertake to invite input from Fita specifically, nor did she concede her position that the initial decision to ban the sale of cigarettes was sound in law. 

The association attacked the legality of the prohibition in its initial, failed, high court challenge and again in papers to the Supreme Court of Appeal (SCA).

The association entered negotiations with the state last Monday, as Dlamini-Zuma gazetted the lifting of the ban.

Fita had also advanced in its founding affidavit to the supreme court that it was in the public interest to test the extent of the powers the minister of cooperative governance draws from the Disaster Management Act, in terms of which the ban was imposed.

The imposition of the unprecedented ban in March had raised novel issues in law, it argued.

Dlamini-Zuma refused to give an undertaking, sought by Fita, that the ban would not be reintroduced at any future point during the ongoing state of disaster, saying she could not agree to exercise her discretion on the matter in any particular way.

However, should the ban be reinstated if the country returned to tougher lockdown restrictions from the current alert level 2, the decision would be taken in accordance with the law.

"Any future decision regarding the prohibition of the sale of tobacco and related products, if any, shall be taken in accordance with the law and the requirements of legality," according to a statement released by the association.

The agreement will see the state and Fita each pay their own legal costs in the North Gauteng High Court case. The court had awarded costs against Fita when it dismissed its legal challenge to rationality of the ban in June, despite the state not seeking a cost order.

The supreme court granted Fita leave to appeal on August 14 and may have heard the matter as early as October.