The high court in Cape Town on Monday granted Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma leave to appeal its December ruling that found the five-month ban on tobacco sales the state imposed last year unconstitutional and invalid.
The decision came as little surprise after Judge Tandazwa Ndita two weeks ago told legal counsel for the minister and British American Tobacco SA (Batsa), which mounted the successful but eventually moot challenge, that there was prima facie reason to allow the matter to proceed to the supreme court of appeal.
Lawyers for the minister had submitted that this is to be found in the fact that on 26 June last year, the high court in Pretoria had come to a different conclusion when it dismissed a challenge to the ban brought by a local industry rival, the Fair-Trade Independent Tobacco Association (Fita).
Fita’s challenge had rested on administrative law, notably the necessity threshold imposed by section 27(2)(n) of the Disaster Management Act.
Batsa had ventured further and argued that the probation, which stretched for 143 days in the end, fell foul of both the constitution and administrative law, the latter to the extent that an appropriate reading of the necessity test was a narrower one than applied by the court in Pretoria.
In the Fita case, a full bench had construed the test to mean that a particular measure must be “rational and reasonably necessary”.
It found, in the minister’s favour, that the summary ban on the sale of cigarettes in the face of the Covid-19 pandemic, ostensibly taken to spare the health services the additional burden of smokers with aggravated symptoms of the virus, had been reasonable.
The ban subsequently remained in place for another two months.
Cue four more months and the Cape division found that regulation 45, in which the ban was encoded, 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.
It also read the necessity test as meaning that the same benefit could not have been achieved through a less damaging and disruptive means.
In her ruling, Ndita referred to case law holding that even in instances where the court a quo believed that it was not persuaded as to the prospects of another court coming to a different view, it was still compelled to ask whether there was a compelling reason to allow a matter to proceed on appeal.
This included whether there was at stake an important question of law or a “discrete issue of public importance” that could affect future disputes.
Given that South Africa has remained under a national state of disaster, which has just been extended again to 15 March with the likelihood it would be prolonged again, there was every chance of more regulations being made to prevent an escalation of Covid-19 infections.
“As seen in both this case and the Fita judgment, regulations made in terms of the DMA [Disaster Management Act] have the potential to, and does [sic], impact on a number of constitutional rights of multiple sectors of the community.
“Therefore, the interpretation accorded to the word ‘necessary’ as used in sections 27(2)(n) and (3) of the DMA, are of great public interest.”
The court added: “The import of the legal question and the public interest in resolving this legal question have tipped the scale in favour of granting leave to appeal notwithstanding our views on the merits thereof.”
Alfred Cockrell SC, for Batsa, had sought to argue that, in the end, the order handed down by the Cape court had only pertained to constitutionality in January and that even if there were conflicting findings on the necessity test, an argument on administrative law would not get the minister to Bloemfontein.
In January, when the minister applied for leave to appeal, Batsa filed a cross-application for leave to appeal despite the judgment having gone overwhelmingly in its favour. The court granted leave to do so, stating that there was a prospect the supreme court might arrive at another view on this point.
Lawyers for the company on Monday said its appeal would proceed in terms of challenging the Cape court’s decision not awarding a costs order against the minister.