Batsa ready for round two in fight against Dlamini-Zuma’s smoke ban

British American Tobacco South Africa (Batsa) is gearing up for another round in the ring with Cooperative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma.

Last month, the Western Cape High Court upheld Batsa’s challenge to the controversial tobacco sales ban that was put in place during the early stages of lockdown, and declared it to have been unconstitutional and invalid. But Dlamini-Zuma has since launched an application for leave to appeal, which Batsa is now opposing.

The tobacco giant filed a notice of intention to oppose the minister’s application on Wednesday, and were it to prove unsuccessful, it 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.

“The ordinary rule is that costs should follow the cause in constitutional litigation where a private litigant is successful against the state,” Batsa’s legal team said in the organisation’s papers.

“[Batsa has] been overwhelmingly successful … Under the circumstances, this honourable court erred in not ordering the [state] to pay [Batsa’s] costs, including the costs of two counsel and the qualifying expenses of [Batsa’s] expert witnesses”.

In her papers, meanwhile, Dlamini-Zuma’s legal team laid out no less than a dozen grounds of appeal.

Her lawyers argued the court had erred in accepting the evidence of Dr Chris Proctor, an expert witness Batsa put up.

They charged that Proctor was “partisan” and had “consistently asserted the cause of the British American Tobacco group” as well as that his training was in chemistry, so he was not a medical expert.

“This honourable court erred in not addressing either of the [state’s] objections to the admission of Dr Proctor’s
affidavit, namely because of his association with Batsa he was not independent and his qualifications and training do not qualify him to provide evidence as an expert on the issues expressed in his affidavit,” they said.

They also questioned 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 their trade or occupation, highlighting the temporary nature of the ban.

“The temporary ban on the sale of tobacco, tobacco products, e-cigarettes and related products, analysed objectively, does not impact on the choice of the trades or occupations of tobacconist and tobacco farmer,” they said. “Persons could still choose those trades or occupations with the reasonable expectation that when the worst of the COVID-19 crisis had passed they would be able to practise them as fully as ordinarily permitted”.

They maintained that the evidence suggested smokers were at risk of developing a more severe form of Covid-19 than their non-smoking counterparts and that the ban had as a result been rational.

The application is yet to be set down for hearing.

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