Government has applied to the Supreme Court of Appeal for leave to appeal a Western Cape High Court judgment which found the ban on trading in tobacco during South Africa's hard lockdown last year was unnecessary.

Represented in the case by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, President Cyril Ramaphosa and the National Coronavirus Command Council, government's view was that the ban would curb the spread of Covid-19. The 5-month ban was in place until SA moved into lockdown Level 2 in August. The aim was claimed to be to stop people from smoking so that they do not get Covid-19 in a more severe form.

British American Tobacco SA (BATSA) and other tobacco traders, including the Limpopo Tobacco Processors, SA Tobacco Transformation Alliance and Suider Afrika Agri Inisiatief, had turned to the High Court earlier in August, before the ban was lifted, to challenge its legitimacy. Judgment in the case was reserved and delivered in December.

BATSA, which owns brands like Dunhill, Peter Stuyvesant and Lucky Strike, argued, among other things, that government's decision to ban cigarette sales during the hard lockdown would unintentionally give rise to illicit trade in tobacco as, in its view, smokers would be highly likely to end up buying from underground traders selling illicit products.

BATSA argued that any benefit achieved by the continued ban on tobacco sales would be far outweighed by the damage caused economically, putting the entire tobacco industry at risk. BATSA has 78% of the market share of the legal cigarette market in SA. In 2019, BATSA contributed R13-billion in total taxes, of which R10-billion was tobacco excise.

On behalf of BATSA it was also argued that, based on what the minister alleged in her court documents, just 10% to 15% of the country's smokers would likely quit due to the ban, because of the high price of illicit cigarettes. BATSA also questioned government's medical basis for the ban, arguing that, while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of Covid-19.

BATSA said that, while it supported government's efforts to curb the spread of the coronavirus pandemic, it would like to see practical and enforceable solutions implemented.

The High Court found that the relevant regulation used to implement the ban could be challenged from a constitutional perspective - denying smokers and vapers the right of choice - and would, furthermore, not reach the aim of the Disaster Management Act (DMA), namely, to prevent the spread of Covid-19.

'OTHER COMPELLING REASONS'
In the view of government, there is, however, a reasonable prospect the appeal, if allowed, would succeed. Government claims there are also "other compelling reasons" why the appeal should be heard. These include government's view that there is a conflict between aspects of a judgment in the Gauteng High Court in Pretoria in June last year in which the tobacco ban was challenged by the Fair-Trade Independent Tobacco Association (FITA).

The FITA case was dismissed on grounds that the court found tobacco products not to be essential goods to be for sale. FITA ruling was given in June last year, therefore, before BATSA and others brought their challenge in the Western Cape High Court. The latter court found the FITA ruling was not binding on it.

In its leave to appeal against the BATSA ruling, government also claims that the admission of certain expert evidence in favour of the BATSA case, should not have been admitted. It claims the expert in question had an association with BATSA and that his qualifications and training did not qualify him to provide expert evidence in the case.  

Government claims that the Western Cape High Court erred in finding that smokers' and vapers' rights to dignity, privacy, bodily and psychological integrity and to human dignity was denied by not giving them the choice of buying tobacco and vaping products. Likewise, the court's ruling that there was an infringement of the right to choose a trade or profession and the right not to be deprived of property arbitrarily.

In government's view, the aim of prohibiting the sale of tobacco products during alert Level 3 was to reduce the incidence of smoking and in so doing, reduce the risks posed by Covid-19 to smokers themselves and to persons exposed to cigarette smoke, and to free up the scarce health care resources needed to respond to severe cases of Covid-19, particularly given the predicted steep rise in the rate of infections expected at the time following the lifting of alert Level 4 restrictions on work and the movement of people necessary to re-start the economy.

FITA CASE
In the FITA case the Gauteng High Court found that all a court must determine is whether a rational connection between a legitimate government purpose - the saving of lives and health and preventing the overwhelming of the country's health care facilities - and the means chosen, namely banning the sale of tobacco and vaping products, exists. 

In government's view, the evidence it provided in the BATSA case in the Western Cape High Court, did far more than provide sufficient rational basis for the minister's decision for implementing the tobacco ban. In the alternative, government claims that the ruling in the BATSA case was not correct in finding that the relevant lockdown regulation limited certain constitutional rights, but that the limitations imposed were reasonable and proportional, especially in the light that the minister indicated that the ban was temporary and would be lifted as soon as it would be safe to do so.

FITA said in a statement on Tuesday that it found government's decision to ask for leave to appeal the BATSA case regrettable, "given the irreparable harm [the ban had] on the tobacco industry along with its value chain". Like BATSA, FITA is also of the view that the ban simply created the "exponential and unabated growth of the illicit cigarette market", leading to the knock-on effect of increased losses to the fiscus. 

"We are of the view that the many legal challenges government has had to defend during the lockdown period, due to its implementation of many irrational regulations, have meant that government has expended a substantial amount of funds and other resources to fighting unnecessary legal battles instead of utilising those resources to combat the spread of the coronavirus and its impact on the citizens of this country," states FITA.