Tobacco War: FITA granted leave to appeal to SCA

The Fair-Trade Independent Tobacco Association (FITA) has finally gained a victory, albeit a small one, in their battle to see cigarette and tobacco sales unbanned.

FITA has been granted leave to appeal it’s case against the ongoing cigarette ban in the Supreme Court of Appeals, as well as having a costs order against them overturned for now.

FITA lodged its application to approach the SCA directly on 31 July, after a full bench of the North Gauteng High Court in June dismissed their urgent application to have the ban lifted, as well as a subsequent application for leave to appeal to the SCA.

Last week, Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma lashed FITA in her papers filed in response to their application to the SCA. She accused the cigarette industry players of being motivated purely by its own financial interests and little more, in its fight to have tobacco sales allowed.

President Cyril Ramaphosa and Dlamini-Zuma are the first and second respondents respectively in the case.

In FITA’s application the SCA, their 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.

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.

In the decision from the SCA’s Justices Ponnan and Plasket, the court ruled that the costs order be set aside. If they do, however, not continue with the appeal, the applicant would be expected to pay the costs.

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