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Tobacco industry argues Dlamini-Zuma’s bid to appeal adverse ruling on the ban is fatally flawed

The Western Cape High Court will decide without delay whether to grant the government leave to appeal its December ruling that found last year’s ban on tobacco sales unconstitutional and invalid, Judge Tandazwa Ndita said on Monday after hearing arguments in the matter.

In an hour-long virtual hearing, legal counsel for Co-operative Governance Minister Nkosazana Dlamini-Zuma, the sponsor of the 143-day prohibition, submitted that the court had erred on 12 counts when it found in favour of British American Tobacco SA (Batsa).

Much of Monday’s argument as to the merit of the application turns on the fact that two different high court divisions have reached different conclusions on the validity of perhaps the most debated restriction imposed in response to the Covid-19 pandemic.

The December 11 ruling in the Western Cape was a resounding victory for Batsa. It came four months after the ban was lifted and six months after the rival Fair Trade Independent Tobacco Association (Fita) unsuccessfully challenged the measure in the Pretoria high court.

The court found that the minister had exceeded her powers, in part because she failed to prove that it was necessary to achieve her aim of reducing the burden on the health system.

In the Fita ruling on June 26, the Pretoria high court had favoured the minister with a broad interpretation of the necessity test in section 27 (2) (n) of the Disaster Management Act, finding that the ban was a rational measure, imposed at a time of crisis and that therefore she had cleared this threshold.

Advocate Marumo Moerane, for Dlamini-Zuma, on Monday argued that the earlier ruling was correct and that the Cape division was bound to it by precedent.

But Batsa had ventured where Fita did not by attacking the ban’s constitutionality, gazetted as regulation 45 under lockdown alert level 3.

This allowed it to contend, successfully, that the court could not only differ from the Gauteng judgment if it found it to be substantially erroneous because the earlier ruling did not provide authority on the broader legal issues raised. 

The court agreed that the ban did not withstand constitutional scrutiny. The minister’s medical evidence did not justify the intrusion on the rights to dignity, privacy and physical integrity of smokers and those in the tobacco industry to choose their trade. 

It found that regulation 45 fell foul of the proportionality test in section 36 of the constitution, in that the harm caused by the measure outweighed the benefits to the state.

Senior counsel Alfred Cockrell argued persuasively that the minister had not shown that a significant number of hospital beds would not be occupied if smokers were forced to quit and prevented from falling severely ill with Covid-19.

If there were indeed a link between smoking and exacerbated Covid-19 symptoms, he submitted, it could be extrapolated accurately “on the back of a cigarette packet” from the minister’s own figures that at any given time the cigarette ban would free up at most 16 beds in South Africa’s hospitals.

On Monday, Cockrell advanced that the ministry had conceded that the ban would not stop the tobacco trade but merely inconvenience those who could not afford the inflated prices at which cigarettes sold on a booming black market.

It meant that the same could have been achieved by merely hiking sin taxes, and the ministry’s argument that the chosen means did not matter amounted to “a quite mind-boggling admission that it still did not understand the court’s finding regarding proportionality”.

But principally, he countered Moerane’s regurgitation of the ministry’s original arguments by saying that Dlamini-Zuma could not appeal to the court’s reasoning in terms of administrative law because of the final order instance, which referred only to the constitutionality of the ban.

“When one cuts through all the clutter, is there a reasonable prospect that another court would find differently to it when it comes to justification? And this court stacked up the reasoning as to why there was no proportionality between regulation 45 and the aim that it was intended to achieve, and we would submit that there was no reason another court would take a different view.” 

Cockrell pointed out that Ndita had indicated that she was, prima facie, inclined to grant leave to appeal on the basis that two high court divisions had reached different conclusions.

But, he added: “The Fita judgment did not deal with the constitutional law issue, it only dealt with the administrative law issue.”

Hence, even if there were conflicting findings on the necessity test, an argument on administrative law would not get the minister home.

The minister’s decision to file for leave to appeal to the Supreme Court of Appeal suspended the court ruling and raised fears in the industry that she might seek to reimpose a ban while the pandemic continues.

But the litigation also raises broader issues as to the limits of the minister’s powers, and the level of protection that other sectors of the economy and the population can expect against arbitrary restrictions.

Should the minister be denied leave to appeal by the high court, she could directly petition the supreme court.

Last year Fita withdrew its appeal bid a few days after the ban was lifted.

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