Fita asks for leave to appeal high court ruling on cigarette ban

After a bruising loss at the High Court in Pretoria on 26 June, the Fair Trade Independent Tobacco Association (Fita) has applied for an urgent application for leave to appeal the ruling that denied the lifting of the ban on cigarette sales and tobacco products during the lockdown.

Fita took court action against President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma.

Fita has appealed to the Supreme Court of Appeal on the grounds which include orders that the Fita had to pay costs after losing the cost action, including costs of three counsel.

Fita have stated in their court documents that this is unfair especially when the president and the minister’s counsel said that costs were not sought against Fita.

“The court erred in failing to have regard to the fact that the respondents withdrew their request for costs in light of the considerations in Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC), on the basis that the matter is one of public interest.”

Fita’s legal counsel Morgan Law Incorporate said the high court was mistaken in its approach in testing whether the executive action in banning the sales of cigarettes was rational under section 27 of the Disaster Management Act.

The tobaccos association believes the ban is not rational because the Cogta minister and high court failed to show the link of smokers being at higher risk of getting Covid-19, specifically when they ‘failed to show scientific evidence’.

“… Any meaningful damage to a smoker’s health cannot realistically occur during the period of the temporary ban on sales, and any damage to a smoker’s health will, in any event, already have been caused prior to the ban,” said Fita.

They said it was a ‘dangerous’ to say that illicit trade of tobacco products existed before the lockdown and was matter of fact.

“This reality is destructive of the rationality of the ban in circumstances in which smokers are still able to secure the ongoing supply of cigarettes and tobacco products.

“The fact that a far more serious risk is posed by illicit products being sold and used – products which are not regulated and controlled as they should be and which most likely contain most dangerous substances and additives.”

Fita said their appeal was of public importance and has reasonable prospects of success and their application to the Supreme Court of Appeal should be granted.

(Compiled by Sandisiwe Mbhele)

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