Bernadette Wicks
Senior court reporter
3 minute read
11 Jun 2020
5:10 am

No legal smokes – yet – but plenty of fire in court

Bernadette Wicks

'We don’t want to pre-empt an outcome but we remain confident and hopeful the ban will be lifted,' said Fita chair Sinenhlanhla Mnguni.

Advocate Barry Edwards, left, and senior counsel Arnold Subel, for the Fair Trade Independent Tobacco Association, at the High Court in Pretoria, 10 June 2020. Picture: Gallo Images

Speaking outside the High Court in Pretoria, where Fita’s challenge to the ban was heard yesterday, the association’s chair, Sinenhlanhla Mnguni, said he was happy with how proceedings had unfolded.

“We don’t want to pre-empt an outcome but we remain confident and hopeful the ban will be lifted,” he said.

Last month, Fita approached the court with an urgent application. The association already 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.

Government refused to provide the minutes but agreed to furnish Fita and the court with a record of decision, which it did last week. Fita now wants an order declaring that sales are lawful.

In court yesterday, Fita’s counsel, Arnold Subel, said there was “an obsession with alcohol and cigarettes” on the part of the state.

“We know that alcohol has now been permitted and we submit, on the evidence, that it is far more harmful to health services,” he said.

He conceded that tobacco was harmful but said there was legislation in place to moderate its use.

“When we look at the Tobacco Control Act, there’s got to be very careful supervision and control of tobacco products. What is flourishing now is uncontrolled, harmful and probably more addictive,” he said, referring to the reported surge in illicit cigarette sales since the ban took effect.

Subel argued that there had been “steely determination” on the part of government to keep the ban in place, “And for what purpose? To alleviate the strain on health services. But then we have to find that there’s a rational link between the two,” he went on.

He said Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma had determined that “if you stop people smoking, they’ll get over it”.

“But it’s a serious addiction … You can’t just switch off,” he said.

Government, for its part, maintained the ban was necessary.

Advocate Marumo Moerane, on behalf of the state, argued the ban did not have to be “absolutely necessary” but rather that it had to be “reasonably” so.

“Fita argues that the impugned regulations are not necessary … We submit that the test of absolute necessity does not apply,” he said. “It cannot be required that the minister show proof that unless the measure in question is imposed, the health system will definitely collapse …

“What is required is that the minister have a reasonable basis on which to conclude that without the prohibition there’s a real risk to the health system.”

Moerane said Covid-19 was a new pandemic and was “ravaging the whole world at a rapid rate”.

“The responses have to be proactive and the responses have to be swift,” he said, “Although the body of knowledge is increasing, what science tells us at present and what science tells is probable has to guide our actions.”

This was in response to arguments that the research government had relied on when deciding to ban cigarette and tobacco products sales, was largely inconclusive.

“Fita says it’s common cause that the research is inconclusive. We submit that’s not true,” he went on. “Emerging medical literature indicates smokers are more likely to develop a more severe form of Covid-19.”

One of three judges hearing the case, Judge Annali Basson, asked Moerane: “If one accepts for a moment that people who smoke are more likely to get sick from Covid-19 … How does a ban on the sale of cigarettes ease up the pressure on the health system?”

He replied that smoking could never be completely prohibited but that research indicated there had been a reduction in smoking since the ban was effected.

Judgment was reserved.

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