After weeks of toing and froing, the Fair Trade Independent Tobacco Association (Fita) on Monday approached the North Gauteng High Court in Pretoria with an urgent application to lift the ban on cigarette sales.
The association also wants access to the minutes from the meetings at which the National Command Council decided on the lockdown regulations and, specifically, on the issue of cigarettes and tobacco product sales.
Fita’s court action comes after Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma at the eleventh hour last week reneged on an earlier announcement by President Cyril Ramaphosa that the sale of cigarettes and tobacco products would be allowed when the country moved from a level 5 to a level 4 lockdown.
Fita’s chairperson, Sinenhlanhla Mnguni, in his founding affidavit, labelled the about-turn “inexplicable”.
“There must clearly have been a basis for the President, in his 23 April 2020 address, to clearly and unequivocally state ‘The sale of cigarettes will be permitted’. It is doubtful the President would have given that undertaking without proper consultation and a mandate,” he said.
Mnguni said the regulations published at the start of the lockdown did not expressly ban the sale of cigarettes and tobacco products.
“Despite this, several ministers, including [Dlamini-Zuma], and / or their spokespersons have publicly stated that the sale of cigarettes was prohibited,” Mnguni said. “The regrettable consequence of this is that these ministerial comments – which … do not appear to be supported by a proper interpretation of the regulations that have been made and remade – have been incorrectly elevated to the status of the governing law in the eyes of cigarette distributors and the public at large.”
Mnguni charged that “no rational basis has been provided by [Dlamini-Zuma] to demonstrate a link between the sale of tobacco products and steps being taken to prevent the spread of Covid-19.
“I submit that there is in fact no basis to contend that the sale of cigarettes and tobacco products is related to combating Covid-19,” he said. “Despite the fact that many jurisdictions have imposed ‘hard lockdowns’ that involve restrictions on the movement of people and perhaps limitations on commercial activities, none appear to have imposed a prohibition on the sale of cigarettes and tobacco products,. In fact, internationally, China, South Korea and Taiwan are touted as successfully dealing with the spread of Covid-19. None of these jurisdictions banned the sale of cigarettes or tobacco products.”
He contended that the ban violated members of the association’s rights to practice their trade as well as “a freedom exercised by a sizable proportion of the public, consisting of approximately 11 million South Africans”.
Attached to Fita’s court papers, was also an opinion from clinical psychologist Sheethal Behari outlining the “impact of the sudden withdrawal of nicotine”.
“Nicotine is an addictive chemical that when suddenly discontinued causes both physical and psychological withdrawal symptoms. The psychological symptoms can last for an extended period especially when quitting is not voluntary but seen as forced and the recommended methods to cope with withdrawal and quitting are currently not allowed,” Behari said.
She pointed out that ordinarily, psychologists might recommend those trying to quit smoking avoid triggers – which could include loved ones – or that they exercise.
“The issue with these methods is that under lockdown, most of this is either very limited or not possible at all,” she said.
The Presidency had not yet responded to a request for comment at the time of publishing. In the meantime, the case is expected to be heard next week.