Not for court to decide if smoking policy is good or bad, says legal expert

Government will have to prove that should one stop smoking for several weeks, they are less likely to die of Covid-19 than those who did not, otherwise the decision to continue banning the sale of tobacco products will be a mistake.

The tobacco battle will continue tomorrow as the Fair Trade Independent Tobacco Association’s (Fita) application for leave to appeal the dismissal of its challenge on the ban will be heard in the High Court in Pretoria.

This after a full bench of the high court last month dismissed the challenge brought by the association against the ban with costs. The court found that the ban, which was one of the measures imposed to combat and contain the spread of Covid-19, was legally rational. This means there should be a rational link between what is being done and the purpose of doing it, said constitutional law expert Pierre de Vos.

“In terms of Covid-19, the purpose of the regulations is to suppress the spread of the virus and limit the number of people who will die of the virus,” said De Vos.

The question to be asked was: would a rational person find a link between banning cigarettes and reducing the spread of the virus and the number of people who would die of the virus?

In its application papers, Fita argued that the court erred in applying the rationality test that imposing the ban on tobacco products was rationally linked to the purpose of the gazetted regulations in terms of section 27 of the Disaster Management Act.

Also read: Court agrees to hear Fita’s bid for leave to appeal cigarette sales ban ruling

According to the South African Drug Policy Initiative (SADPI), the court’s basis of legal rationality is a “narrowly defined minimum threshold” for government’s decision-making. SADPI, a nongovernmental organisation that advocates for drug-related policies, provided an expert witness to support evidence brought forward by Fita.

But its expert advice was not considered by the court, despite the scientific evidence contrasting legal rationality, said SADPI’s Keith Scott.

“Before implementing any public health policies, the authorities are obliged to consider both the potential benefits versus the countervailing risks and costs of those policies. Fita’s medical experts pointed out that neither of these assessments was carried out and provided evidence to show how the harms and costs of the banning far outweighed any of its purported benefits.

“Unfortunately for the South African public and its economy, the court did not consider the scientific evidence to be used as important as the argument around legal rationality,” said Scott.

But it was not for the court to decide whether the smoking policy was good or bad, but instead to apply the rationality test, said De Vos.

“A general argument by government that smoking is unhealthy and should be curtailed is a bad argument to use to this because in this case, the purpose is has to be linked to Covid-19 and not for health concerns – meaning [Minister Nkosazana Dlamini-Zuma] is legislating through making regulations instead of going to parliament.”

“If the court focuses in general on the fact that tobacco is bad for you and on the basis of that, says its rational, they have made a mistake… You have to show that people who, for three weeks, have stopped smoking are less likely to die from Covid-19 than the others.”

– rorisangk@citizen.co.za

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