Cigarette ban causing more harm than good, high court told ahead of legal battle

Cooperative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma will defend her decision to ban the sale of tobacco products in the high court in Cape Town on Wednesday.
Image: Simphiwe Nkwali

British American Tobacco SA (Batsa) and cooperative governance minister Nkosazana Dlamini-Zuma are set to butt heads in the high court in Cape Town on Wednesday.

The company – and other litigants including farmers, processors, manufactures, retailers and consumers – are up in arms over Dlamini-Zuma’s decision to ban the sale of tobacco and vaping products during the lockdown.

The tobacco traders have hauled Dlamini-Zuma, President Cyril Ramaphosa and the national coronavirus command council before the high court in Cape Town. The case is set down for two days.

In a 81-page submission to the court, Batsa questions whether it is Dlamini-Zuma or the smokers themselves who should decide to quit smoking or not during the Covid-19 pandemic. The matter will be heard by a full bench.

“Prior to the pandemic, the decision was left to adults to make themselves,” Batsa’s court papers read.

“The sale of cigarettes was regulated but was not prohibited in South Africa, notwithstanding WHO [the World Health Organisation] having warned of the health risks of smoking. All of that has changed during the pandemic.

“Government has now taken it upon itself to make the decision on behalf of smokers by decreeing that they will be unable to purchase tobacco and vaping products lawfully.

“Since smokers and vapers have been deprived of a choice that they were entitled to make before the pandemic, government bears the burden of justifying its change of stance.”

Dlamini-Zuma has maintained that smoking will put a strain on the public health system during the pandemic.

But Batsa is having none of it.

“We submit that minister’s justification is – to use a metaphor that is particularly apposite here – an exercise in smoke and mirrors,” it argues in the court papers.

“Even if a series of assumptions were to be made in favour of the minister regarding the health risks of smoking in relation to Covid-19, the ‘benefits’ on which the minister relies would still be heavily outweighed by the harm caused by prohibition.

“We will show that, on the minister’s own version, the public health ‘benefits’ are miniscule when weighted against the massive harm caused to smokers, to participants in the tobacco supply chain and to the fiscus.”

Batsa argues that Dlamini-Zuma’s judgment on the prohibition of the sale of cigarettes has been found wanting.

“At the end of the day, therefore, this case is about the standard justification that can be expected of government when it makes a decision that produces few benefits and immense harm,” the court documents continue.

“We submit that the minister has fallen lamentably short of the relevant standard – whether that standard is imposed by the constitution or by the principles of administrative law.”

In their 251-page response, Dlamini-Zuma and Ramaphosa maintain that the ban is justified.

“The overarching reasons for the decision to continue prohibiting the sale of tobacco products for domestic consumption in alert level 3 are to protect human life and health to reduce the potential strain on the healthcare system, particularly given the predictable steep rise in the rate of infections by the novel coronavirus (SARS-Cov-2) following the lifting of the level 4 restrictions on work and movement of people necessary to restart the economy,” their response reads.

“The constitution … imposes positive duties on the state to protect, promote and fulfil the rights in the bill of rights – including the right to life and the right to access to healthcare services.

“The state has a duty to take steps to prevent the spread of disease and to reduce the burden on the health system, so as to ensure that those who need these services can have access to them. This duty is particularly acute in pandemic situation, in which we currently find ourselves in.”


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