NDZ bashes tobacco industry

Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has accused the Fair-Trade Independent Tobacco Association (FITA) of being motivated by its own financial interests and little more, in its fight to have tobacco sales allowed.

This in papers filed in the Supreme Court of Appeal (SCA) on Friday, in response to another bid by the association to overturn a previous judgment dismissing its challenge to the tobacco sales ban.

A full bench of the North Gauteng High Court in June dismissed FITA’s urgent application to have sales declared lawful.

This prompted the association to launch an application for leave to appeal to the SCA which was also dismissed.

This, in turn, prompted FITA to approach the SCA directly.

In the papers, FITA chair Sinenhlanhla Mnguni argued specifically for the costs order – including the costs of three counsel – that the high court had made against the association, to be overturned.

Mnguni argued the state had abandoned its pursuit of a costs order against FITA and the association’s counsel had, as a result, not addressed this in court.

“In any event, the court failed to apply the Biowatch principle, namely that private litigants who bona fide seek to ventilate issues of public importance are usually immunized from an adverse costs order,” he went on.

Usually in civil cases, costs follow the event. But in 2009 the Constitutional Court delivered the precedent-setting Biowatch judgment which found that costs orders should not be made against private litigants who took the state on and lost – if their cases raised constitutional issues.

This “to prevent the chilling effect that adverse costs orders might have on litigants seeking to assert constitutional rights.”

Mnguni argued the high court had “further erred by differentiating the application of Biowatch on the basis that the application was not a constitutional challenge.”

“This is not a requirement,” he said.

In response, however, Dlamini-Zuma argued in this case, the costs order handed down did not have the “chilling effect” the Biowatch judgment sought to guard against.

“The application was primarily aimed at protecting the financial interests of FITA’s members to ensure that they are allowed to trade in tobacco products. FITA brought its application in its own interest, and did not purport to act in the public interest,” she said.

She said the Biowatch principle was not “a bond for risk free litigation for any party seeking to litigate against the state.”

“Though FITA initially appeared to raise issues relating to constitutional rights in its founding papers, and made vague references to the impugned regulations violating constitutional rights, it eventually clarified in oral argument that it did not bring a constitutional challenge to the impugned regulations, FITA did not, it ultimately transpired, seek to assert constitutional rights.”

FITA has until Tuesday to file its response.

For more news your way, download The Citizen’s app for iOS and Android.