Dlamini-Zuma courts contempt after missing deadline in tobacco ban case
Co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma faces the prospect of being pursued for contempt of court after missing a court-ordered deadline to file an answer to the first major legal challenge to the government’s controversial cigarette ban.
Dlamini-Zuma had until the close of business yesterday to respond under oath to lobby group Fair Trade Independent Tobacco Association’s (Fita’s) challenge to the rationality of the tobacco ban, which is due to be heard by the high court in Pretoria next week.
But the deadline went unheeded, seemingly without explanation or apology.
Fita chair Sinenhlanhla Mnguni told Business Day yesterday it was “beyond comprehension” that President Cyril Ramaphosa and Dlamini-Zuma, “despite the significant time periods afforded to them, had failed to serve their answering affidavit in this matter timeously”.
But, perhaps more damaging, her as yet unexplained failure to file her response could reinforce speculation that the state does not have any real evidence to justify the cigarette ban — and is simply trying to prevent the case from being heard through unwarranted delays.
Should Dlamini-Zuma fail to file a response to Fita’s court action in the coming days, Mnguni said his organisation would weigh its options with regard to pursuing her for contempt of court.
Mnguni said Fita was very concerned by the conduct of the state attorney who sought, for the second time, to postpone the case.
On Tuesday, state attorney Arista Wasserman wrote directly to judge Dunstan Mlambo asking him to delay the hearing of Fita’s application by at least two weeks.
Just days earlier, the high court in Pretoria had refused a similar request for a postponement from Wasserman.
In a letter sent to Mlambo on Tuesday, Wasserman argued that Dlamini-Zuma needed more time to provide the court with a record of the documents and information that led the government to continue the tobacco ban into level 3, which came into effect on June 1.
Dlamini-Zuma has already provided a record of the information she says led to the government’s level 4 smoking ban decision — which Fita contends is largely irrelevant to the tobacco ban and fails to provide any compelling evidence to justify it.
The ban has led to a loss of tax revenue and boosted illicit cigarette sales.
The SA Revenue Service (Sars), which is expecting a huge revenue shortfall for 2020/2021, had expected to collect R14.5bn on excise taxes for tobacco over 12 months.
The government, which is facing an increase in court cases related to the lockdown, is having to deal with another court challenge in the high court in Cape Town from British American Tobacco SA supported by Japan Tobacco International as well as groups and organisations representing the tobacco value chain countrywide.
Dlamini-Zuma, however, appears to dispute that the ban has resulted in a boom in the illicit trade of cigarettes and contends that it will, in fact, result in many smokers deciding to quit.
Mnguni told Business Day that Ramaphosa and DlaminiZuma “have not brought a substantive application for postponement” of the case.
“On this basis alone, we submit, the request for a delay of the hearing should be denied.
“We have unequivocally stated that we oppose any request for a postponement and would seek the opportunity of addressing it fully should the application for a postponement be entertained,” Mnguni said.
He said Fita did not consider Wasserman’s direct communication with Mlambo appropriate, given that he is one of the three judges set to hear its case on June 9-10.
Mlambo has not responded to Wasserman’s letter, in which she insisted that the state’s request for a postponement of the case was not “a delaying tactic on the part of the president and the minister”.
“It is an attempt to ensure that the lawfulness of Regulation 45 [which governs the cigarette ban under lockdown level 3] is justly determined,” she said.