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Tobacco ban case set to continue on 15 February

The Western Cape high court will hear Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s application for leave to appeal its December ruling declaring last year’s five-month tobacco sales ban unconstitutional on 15 February.

According to a notice to both parties, a cross-application by British American Tobacco South Africa (Batsa) for leave to appeal aspects of the judgment will be heard simultaneously in an hour-long online hearing.

Dlamini-Zuma applied for leave to appeal on 4 January, raising fears in the tobacco industry of a second ban as Covid-19 infections soared in the second wave of the pandemic.

It was the last day of the window for leave to appeal and her office insisted that she was not intent on a fresh ban, but instead seeking to take the matter to the Supreme Court of Appeal for the sake of clarity on the powers conferred by the Disaster Management Act on the government to impose restrictions.

However, political sources said in the following days she lost an argument within cabinet about taking South Africa back to more stringent lockdown levels. 

The court ruling, handed down on 11 December, was a humiliating loss for Dlamini-Zuma after she had seen off an earlier challenge by the Fair Trade Independent Tobacco Association (Fita) in the North Gauteng high court.

Batsa went further than its industry rival and successfully argued that the ban had fallen foul not only of administrative law, in that the minister failed the necessity test, but also of several clauses of the constitution.

A full bench accepted arguments by Alfred Cockerill SC that the minister failed to justify the limitations she placed on smokers’ rights to dignity, privacy and physical integrity, and those of tobacco producers to choose their trade.

Batsa also succeeded in another instance where Fita had failed: it persuaded the bench that, under section 27 (2) of the Disaster Management Act, the minister needed to prove that any harm caused by the prohibition was necessary to prevent more significant harm, in this case, the strain smokers with Covid-19 would place on the burdened health care system.

Here, the Pretoria high court had in June effectively handed her a free pass by ruling that the ban was a reasonable step, taken at a time of crisis and that, therefore, she had cleared the threshold of necessity.

In her application, Dlamini-Zuma argues that the earlier judgment in her favour had bound the Western Cape high court and that it was correct as she had shown a rational link between her aim and her chosen means of arriving there.

The Batsa ruling went in Dlamini-Zuma’s favour on just one point of law, but it was an important one. The court rejected the cigarette maker’s argument that the ban was ultra vires because the Disaster Management Act only expressly provides for restrictions on alcohol sales, saying this strict reading would rob the minister of the sweeping powers the law rightly confers. 

The company is seeking to appeal this point, as well as the court’s decision not to award costs against the government.

However, its application is conditional on the court granting Dlamini-Zuma leave to appeal.

Should she not succeed, it is not necessarily the end of the road, because the minister can directly petition the Supreme Court of Appeal.

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