Booze and tobacco bans gone for now, but FITA continues legal fight

The ban on alcohol and tobacco products may have been lifted, but the court cases challenging them aren’t disappearing just yet.

For the past five months, players from both industries have spent millions on court battles, in an attempt to force government to relax strict measures meant to ease their response to the Covid-19 pandemic, and at least one of them intends to push through on its challenge, despite the lifting of the bans.

Alcohol sales were prohibited in order to ease pressure on hospitals, where doctors were having to focus on road accidents and other booze-related injuries in emergency wards, while Covid-19 cases mounted.

Alcohol sales were temporarily allowed again in June, leading to a spike in hospitalisations, and a swift re-banning when cases began to spike.

So, understandably the country’s smokers and drinkers celebrated when President Cyril Ramaphosa announced that “Restrictions on the sale of tobacco will be lifted, the suspension of the sale of alcohol will be lifted subject to certain restrictions,” as he addressed the nation on Saturday night.

This means that both cigarettes and liquor will be back on the shelves after midnight on Monday, but that doesn’t mean the court challenges against the bans on both industries’ products will simply disappear.

Tobacco Lawfare

Marumo Moerane SC (R) and Ngwako Maeneje SC (L) prepare to deliver oral arguments at the North Gauteng High Court on June 10, 2020 in Pretoria, South Africa. It is reported that the Fair Trade Independent Tobacco Association (Fita) wants the government’s decision prohibiting the sale of cigarettes and other tobacco products declared invalid and set aside. (Photo by Gallo Images/Phil Magakoe)

The tobacco ban proved much more difficult to justify than that of booze, as these products were restricted ostensibly because of the health impacts of smoking, as well as the risk of infection between people sharing cigarettes.

Tobacco product manufacturers, however, questioned to science on which the ban was based, saying smoking damage would only be evident after long-term use, thus a short-term ban such as this served no purpose.

They also questioned the rationale of argument around sharing, saying the shortage and high prices of black market cigarettes made it more likely that smokers would share their stompies.

British American Tobacco’s (BATSA ) court challenge of the ban hinged on its supposed unconstitutionality, and they told the Western Cape High Court that the harm caused by the ban far outweighs the benefits to the public health system.

Read More: NDZ banned tobacco sales well knowing it would boost illicit trade, her advocate says 

BATSA advocate Alfred Cockrell told the court that the ban violates the rights of consumers and the right to free trade, questioning the argument that smoking could result in a severe form of COVID-19.

Cogta Minister Nkosazana Dlamini-Zuma’s advocate Karrisha Pillay had pointed to to several studies showing smokers’ increased risk of contracting respiratory diseases, including warnings from the World Health Organization (WHO).

Cockrell did not buy these arguments though, saying: “In the pre-pandemic world, when the WHO also recommended that smokers stop smoking, this government didn’t prohibit the sale of cigarettes. Nowhere in this document, does the WHO say, we recommend that government prohibit the sale of cigarettes.”

BATSA estimates that South Africa has around 8 million smokers. AFP/File/Emmanuel Croset

In a separate case, the Fair-Trade Independent Tobacco Association (FITA) argued that the ban on the sale of cigarettes was harming both the industry and individuals, and the reasoning behind it was irrational.

The court ruled against them, saying FITA’s argument that tobacco products be considered ‘necessary’ due to the negative effects the ban was having on those dependent on the substance was without merit. It also found that FITA had ignored the context in which the ban was put in place, which was the requirement for swift action from government in the midst of an international pandemic.

On Friday afternoon, the Supreme Court of Appeals FITA access to appeal the ban on cigarette sales directly.

Read More: Tobacco War: FITA granted leave to appeal to SCA

Why continue fighting?

Shortly after the announcement of the lifting of the ban on Saturday night, FITA chairperson Sinenhlanhla Mnguni told the SABC that their legal challenge would continue.

Mnguni said due to the uncertainty of whether the country will remain at alert level 2, it is necessary to continue their challenge. This is to prevent government from being able to reinstate the tobacco product ban should cases of Covid-19 begin to spike again, and the country returns to a higher alert level.

Another reason for their refusal to drop the case is, of course, the costs aspect. In their decision to grant FITA leave to appeal, the SCA temporarily set aside the costs order currently against them. Should they, however, refuse to continue with the case for whatever reason, this costs order would be reinstated, leaving them liable for millions in legal fees.

FITA has also not dismissed the possibility of them seeking reparations from government, should the courts find that the ban was illegal and unfairly prejudiced them, and lead to them losing millions in income due to lost sales.

A court date for FITA’s SCA application has not yet been set down.

Meanwhile, judgement has been reserved in BATSA’s challenge.

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