Batsa and Dlamini-Zuma’s tobacco tussle nearing conclusion

Whether or not Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma will get another chance to defend the controversial tobacco sales ban that was put in place during the early stages of lockdown, is now up to a full bench of the Western Cape High Court.

Late last year, the court declared the ban to have been unconstitutional and invalid. This on the back of an application brought by British American Tobacco South Africa (Batsa).

But Dlamini-Zuma has since launched an application for leave to appeal the order, which was argued before a full bench on Monday.

Her application is rooted in 12 different grounds of appeal, among them the court’s findings that the ban and the regulations governing it had infringed on South Africans’ rights to dignity, privacy and bodily and psychological integrity, as well as their right to choose or practise their trade or occupation – highlighting the temporary nature of the ban.

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On the issue of privacy, in particular, the minister’s advocate, Marumo Moerane SC, said on Monday that the regulations did not prohibit the use of tobacco but rather its sale.

“And the scope of privacy shrinks the more one moves into communal relations and business interactions,” he added.

On the issue of trade, meanwhile, Moerane said because the prohibition was temporary that “objectively, there’s no infringement of the right to choose one’s trade” and any impact on the right to practise it, was not permanent.

He maintained the evidence suggested smokers were at risk of developing a more severe form of Covid-19 than their non-smoking counterparts and criticised the court for not having dealt with the evidence the state had put forward relating to the immediate and short-term benefits of not smoking.

“We submit that the state was justified in taking a cautious approach,” he said,

“Its evidence supports a reasonable inference that if a smoker contracts Covid-19, he or she is at greater risk of the disease progressing to a more severe form. This, in turn, will increase the strain on the public health system”.

BAT SA is opposing the minister’s application for leave to appeal but were it to prove successful, has also filed its own conditional application for leave to cross-appeal certain aspects of the high court’s judgment – including the order that each party pay its own costs.

Alfred Cockrell SC, for BAT SA, on Monday described the minister’s attempts to justify the ban as “extraordinary”.

“She says the product will trade in the illegal market but that the price will increase by so much, most people won’t be able to afford it,” he said – pointing to questions posed by the court regarding why, then, government had not just increased excise duties.

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“The minister says it makes no difference but of course it does because in that world the sale is not unlawful and so the industry continues to operate” he said.

“To say it makes no difference is quite a mind-boggling submission and suggests they don’t fully understand the finding of this court”.

Judgment was reserved but is expected to be handed down soon.

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