Legal showdown for tobacco ban this week

The controversial ban on the sale of tobacco products is heading to court this week, with one of two cases expected to be heard before a full bench of the Pretoria High Court on Wednesday and a second due for response in the Western Cape High court on Friday.

The Fair-trade Tobacco Association (Fita) will make its arguments about the lack of rationality of the tobacco ban before the Pretoria High court from tomorrow. The deadline for respondents in the second case, an urgent application by cigarette juggernaut British American Tobacco (Batsa), has been set for the 12^th of June.

Despite the scaling down of other economic lockdown measures as part of the stepwise reopening of the economy, the sale of tobacco products remains in place. Government has based the controversial decision on “health concerns associated with smoking and the coronavirus.”

The tobacco industry argues that government has not given sufficient empirical evidence over the alleged health risks associated with smoking and covid-19.

Tensions boiled over when Pres. Cyril Ramaphosa announced on the 23^rd of April that cigarettes would go on sale once more under level four of the coronavirus lockdown. However, on the 29^th of April cooperative governance and traditional affairs minister Dr. Nkosazana Dlamini-Zuma announced that the national coronavirus command council had decided to keep the ban in place.

Industry giant Batsa was initially at the forefront of the legal battle against government. The cigarette company later announced that it would rather engage in a dialogue with government over the matter. When no headway was made and it became known that the tobacco ban would continue despite the easing of covid-19 lockdown measures, the company announced on 29 May that it had commenced urgent court proceedings to challenge this decision.

Meanwhile, Fita remained relentless in their efforts. Since the extension of the ban they have argued that there is not sufficient evidence to back claims on the health risk of smoking and covid-19. To date government has still not given clarity over the reasoning of the extension, maintains chairman of Fita, Sinenhlanhla Mnguni.

“What exactly changed between April 23^rd and the 29^th?” asks Mnguni.

“The medical literature which is relied upon is not conclusive, in fact we have not received any form of empirical data from government which supports what they say in as far as cigarettes and the virus is concerned,” Mnguni says.

While there is no argument over the dangers of smoking, he says, it is a lawfully regulated subsistence.

Government had backed their claims citing that 2000 people objected to the sale of cigarettes under lockdown. Mnguni says these statistics were exaggerated.

“We now know that there were only some 400 submissions from people complaining about the ban on the sale of cigarettes. We do not believe that it is sufficient to sway government, particularly in light of the fact that publicly more than 600 000 people have come out in support of the lifting of the ban.”

It is all in the court’s hands tomorrow, on the 10^th of June, he adds. “We are very confident in as far as the application goes and what we have put forward as arguments in this matter.”

Meanwhile, Batsa will receive feedback from respondents in their legal application on the 12^th of June. The tobacco industry giant had initially withdrawn their legal pursuit revealing that it was open to engagements with government. In the midst of scaling down to level three, it had resubmitted urgent legal documents to the Western Cape high court.

They are expecting a response from Pres. Ramaphosa, Dr. Dlamini-Zuma and the national coronavirus command council over the legal matter on Friday.