Bad news for smokers: High court says cigarette ban was rational

The North Gauteng High Court on Friday dismissed the Fair Trade Independent Tobacco Association’s (Fita) urgent challenge to the controversial ban on cigarette and tobacco product sales during the Covid-19 pandemic, saying the ban did not have to be “the best nor the most suitable” approach.

“The discretion to choose suitable means is that of the repository of public power,” the court said.

Last month, Fita approached the court with an urgent two-part application.

The association achieved partial success with the first part of the application – in which it wanted the minutes from the meetings at which the National Coronavirus Command Council decided on the lockdown regulations and, specifically, the ban – when government agreed to provide a record of decision.

In the second part, which was argued before a full bench earlier this month, Fita wanted an order declaring sales lawful.

But the court on Friday dismissed its application.

“The question should plainly be whether the minister, in placing a ban on the sale of tobacco products in response to the Covid-19 pandemic, acted irrationally and in so doing breached the principle of legality,” said Judge President Dunstan Mlambo, who penned the ruling.

Of the research Dlamini-Zuma had relied on in her papers and Fita’s criticism thereof, Mlambo found it was not the court’s job to “undertake an in-depth comparison as to which of the parties’ medical research reports and opinions are better or more cogent than that of the other”.

“We hold the view that a vigorous attempt to contain the spread of the virus at all costs had to be made especially bearing in mind the high Covid-19 mortality rates and the fact that, as a developing country with limited resources as well as an already overwhelmed healthcare system, South Africa is ill-equipped to survive the full brunt of the pandemic at its peak if no concerted efforts are made to contain the virus,” Mlambo said.

“In our view, the medical material and other reports, inclusive from the WHO [World Health Organisation], considered by the minister, though still developing and not conclusive regarding a higher Covid-19 virus progression amongst smokers compared to non-smokers, provided the minister with a firm rational basis to promulgate [the] regulations … outlawing the sale of tobacco products and cigarettes.”

Mlambo said the minister could, perhaps, have tendered better evidence but that this was not the question before the court.

“The question before us is not so much whether the minister could have adopted less restrictive means. The question that is before us is rather whether the means used were rational and not whether other or better-suited means could have been adopted by the minister,” he added. “The same can be said in response to the contention that the ban on the sale of tobacco products was not effective given that not all smokers ceased smoking as a result of the ban.”

Mlambo pointed to Fita’s arguments in court around the rise of the illicit trade, but said when the minister decided to ban the sale of tobacco products, her objective was not to stop every smoker from smoking.

“It was to alleviate the potential devastating burden on the already constrained healthcare system,” he said. “Our view is that the reality of the illicit trade of tobacco products is not fatal to the rationality of the ban.”

Mlambo also said cigarettes could not be deemed essential goods, because they do not, “by their nature, fall into the same category as goods which are life-sustaining or necessary for basic functionality.”

• This story has been updated with quotes from the full judgment.

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