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.”
BY PHILANI NOMBEMBE
