Tobacco wars: Fita throws in the towel

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Following months of court intrigue, the Fair-Trade Independent Tobacco Association (Fita) has announced that it would retreat from its five-month-long legal battle with government over the now-suspended tobacco sales ban.

The tone has changed since the scaling down of alert levels from three to two and the subsequent lifting of the ban, the tobacco association’s chairman, Sinenhlanhla Mnguni confirms.

Following week-long settlement negotiations with the Office of the State Attorney acting on behalf of both the minister of cooperative governance and traditional affairs, Dr Nkosazana Dlamini-Zuma, and Pres. Cyril Ramaphosa the industry body and defendants of the ban have reached common ground for now.

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“Over the course of the last week our legal representatives have been engaged in settlement negotiations with a view to settle the issues still in dispute in respect of our ongoing court challenge of the cigarette sales ban during the lockdown period, which challenge is currently before the Supreme Court of Appeal,” Mguni says.

Fita chairperson, Sinenhlanhla Mnguni. Photo: Supplied

Fita had suffered some devastating losses in the court battle, which raged on for months. Throughout, Fita remained steadfast in their challenge of the rationality of the ban, seeing their first standoff with government in June before a full bench of the Pretoria High Court.

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They suffered a brutal blow in round one as their arguments questioning the constitutionality of the decision of government to uphold the ban under alert level four were considered invalid and the High Court dismissed their legal action.

A month later and the association was back, gloves dusted and ready to appeal the court’s decision. They set their sights towards the needs of tobacco consumers and argued that millions of smokers were in distress and as such tobacco should be considered an essential good.

That court once more dismissed the action and considered the arguments presented by Fita invalid.

The beginning of August saw the association get leave to appeal before the Supreme Court of Appeal in Bloemfontein. This would have been the next battleground, had the parties not reached concensus.

The decision to retreat, however, does come with a strict set of terms and conditions government should adhere to, Mguni warns.

Parties have agreed to:

  1. Minister Dlamini-Zuma undertakes that should she seek to reinstate the temporary prohibition of the sale of tobacco and related products at any stage in the future, she should allow a public participation process.
  2. Any invitation to or any announcement of a consultation process will be issued publicly.
  3. Fita will withdraw its appeal and the parties will each pay for their own costs in respect of the litigation in both the High Court and Supreme Court of Appeal.
  4. Any future decision regarding the prohibition of the sale of tobacco related products shall be taken into accordance with the law of and the requirements of legality.

“We wish to thank all those who have supported our organisation and its fight to have the ban on the sale of cigarettes and tobacco related products lifted,” Mnguni adds.

Meanwhile a verdict is still anticipated in a separate legal action against government by the tobacco juggernaut British American Tobacco South Africa (Batsa).

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