SCA dismisses Dlamini-Zuma’s appeal on ‘unlawful’ tobacco ban during lockdown

The Supreme Court of Appeal (SCA) has dismissed Minister of Cooperative Governance and Traditional Affairs’ application to appeal the Western Cape High Court’s decision on tobacco sales.

This after a regulation made under Disaster Management Act 57 of 2002 (the Act), prohibiting the sale of tobacco and related products, was challenged as infringement of fundamental rights – dignity, bodily and psychological integrity, freedom of trade and deprivation of property.

The respondents in the case are farmers, processors, manufacturers, retailers and consumers, situated at every level of the supply chain for tobacco and vaping products.

According to the respondents, South Africa, Botswana and India were the only countries in the world to prohibit the sale of tobacco and vaping products to consumers during a national lockdown.

Countries such as Italy, France, Switzerland and Spain had expressly classified tobacconists and other retailers that sell tobacco and vaping products as essential shops that could remain open during lockdown.

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The high court had made an order declaring Regulation 45 inconsistent with the Constitution and invalid.

Defending her decision, Dlamini-Zuma said the ban on tobacco sales was to protect human life and health, and reduce the potential strain on the health system, particularly given the then-predicted steep rise in the rate of infections following the lifting of the level 4 restrictions on work and the movement of people necessary to re-start the economy.

“The use of tobacco products increased behavioural risks associated with the transmission of Covid-19, as some smokers share lit cigarettes,” she argued.

“The emerging research concerning the relationship between smoking tobacco products and Covid-19 showed that the severity of Covid-19 outcomes is greater in smokers than non-smokers. Smokers have higher intensive care unit (ICU) admission rates, a higher need for ventilators and a higher mortality rate than non-smokers. Smoking thus increases the strain on the country’s health care resources, including health workers.”

The appeal was dismissed with costs by the SCA.

Compiled by Vhahangwele Nemakonde