The government is taking a hard line and will not refer the matter to mediation — an option introduced in the lockdown regulations to try to avoid costly court action by aggrieved parties.
Mthembu said the tobacco issue was not one that could be resolved through mediation because there was nothing to negotiate. “We are not going to change our approach,” he said.
“There is no possibility of a midway agreement that accommodates them and us. We believe that it is the right thing to do. I don’t see any of us agreeing on the measures the other party has taken.
“We will make our case in court. We believe we have very good reasons.”
Justice minister Ronald Lamola said there were many cases that could be taken to mediation, but the ban on tobacco sales was not among them.
“The cigarettes matter will depend on the willingness of the parties to mediate, but it does look like something that will end up in the courts,” he said.
“We are not taking away the rights of anyone to go to court; we are just saying that, where it is possible for the parties involved to sit down and mediate, it will save costs for everyone.”
Tobacco giant British American Tobacco (BAT) has given co-operative governance minister Nkosazana Dlamini-Zuma an ultimatum to reverse the ban by tomorrow or face court action.
BAT argues that President Cyril Ramaphosa had initially announced that cigarette sales would be allowed.
Because of this, those who supported the move did not see it as necessary to forward their comments to the government.
Mthembu said the announcement by Ramaphosa was based on a decision of the national command council, but this was subsequently overruled by the cabinet after further debate and the submission of comments.
He said the cabinet, including Ramaphosa, overwhelmingly agreed to continue to enforce the ban.
“There were arguments that said we should bear in mind the illicit trade. The majority — including the president — agreed that we must not continue with the sale.”
Ebrahim Patel, minister of trade & industry, said “health considerations trump everything”.
“When we went into the pandemic, we had to take the decision of what is going to be the key driver and we said it would be considerations of health and the risks,” he said.
Patel said the government was “not averse to talking to everybody” to explain how it reached its decisions.
However, finance minister Tito Mboweni made it known this week that he personally did not support the ban on tobacco, or the ban on alcohol sales, as they were costing billions in lost tax revenue.
For its part, the tobacco industry feels vindicated by a survey conducted in April that found one in four smokers are still getting their nicotine fix despite the ban on legal sales. The survey by the Human Sciences Research Council (HSRC) found that access to tobacco products is particularly easy in informal settlements.
The HSRC, a statutory research agency, published its research findings shortly before the government reversed its decision to allow the resumption of tobacco sales under the level four lockdown easing.
Stakeholders in the tobacco industry are citing the HSRC’s findings to bolster their argument for the lifting of the ban, but the council says they’ve got hold of the wrong end of the stick.
The HSRC survey was conducted over three weeks in April, with a sample of 19,330 participants ranging between the ages of 18 and 59. Most, 70%, were aged between 25 and 59. BAT, the country’s largest cigarette producer, cited the findings of the HSRC survey in its letter to Dlamini-Zuma.
But professor Priscilla Reddy, who conducted the study, said tobacco industry players are misreading the report if they think it bolsters their case.
“Their motivation is wrong,” Reddy said.
“They are driven by money. They are talking about a small percentage of people. If you can see, over 75% did not access cigarettes. This crowd who accessed cigarettes are risk-takers, anyway.”
She said the findings mean that people were able to get cigarettes informally but “that doesn’t mean they were getting illegal cigarettes”.
“I could have bought a box of cigarettes, kept it in my house and then sold it to them during the lockdown because I could have panic-bought before,” Reddy said.