Court says no more delays in tobacco case
The government has failed in its last-ditch bid to delay the hearing of the first legal challenge to its controversial Covid-19 tobacco ban.
In a letter sent last week to judge Annali Basson, one of the three judges who will hear the case brought against the government by the Free Trade and Independent Tobacco Association (Fita), a tobacco lobby group representing smaller cigarette manufacturers, state attorney Arista Wasserman suggested that the case be heard late in June or in July.
This was because government believed the case, which has raised serious questions about the rationality of the ban, was “no longer urgent”.
Wasserman sought to counter any suggestion that the government was deliberately seeking to further delay the hearing of the case, which was launched in early May.
She said the government supported “the expeditious resolution of this matter in the public interest, because of the importance of the issues it raises” but that more time was needed for it to deal with the “complex legal issues” involved.
However, the high court in Pretoria refused to give the state extra time before hearing the long-awaited case.
According to Wasserman, the government did not believe the case was urgent because President Cyril Ramaphosa had announced that the country would move to level 3 on June 1, and regulation 27 regarding the ban, which Fita was challenging, applied only to level 4.
Fita has, however, since filed a supplementary notice of motion and founding affidavit, adding its opposition to the ban continuing during level 3.
The court is expected to hear its application on June 9 and 10.
Fita’s lawyer, Ryan Merrifield, said in correspondence to the court that the lobby group’s case concerned the tobacco ban and “it is that prohibition that remains in issue and relevant”.
“The proposed latest regulations simply do not lift that prohibition, and there is no new review that is/would be required, ” he said.
The ban on the sale of tobacco has been particularly controversial, especially after Ramaphosa first announced that cigarettes would be sold under level 4 of the lockdown.
The ban has led to a loss of
tax revenue and has boosted illicit cigarette sales. The SA Revenue Service, which is expecting a massive revenue shortfall for 2020/2021 had expected to collect R14.5bn in excise duties for tobacco over 12 months.
The government has included health reasons in the argument for the continued ban, even as the lockdown has been lifted incrementally.
This decision has, however, been described as irrational, especially as the sale of alcohol will be permitted when SA moves to a less strict version of the lockdown on Monday and places of worship are allowed to open despite the infection risk for Covid-19 at gatherings.
In a separate application, British American Tobacco (BAT) SA, the local division of the world’s second-largest cigarette producer, will on Monday launch its own challenge to the ban in the high court in Cape Town. The company said its application was being supported by Japan Tobacco International, which distributes its products to 130 countries including SA, as well as groups and organisations representing the tobacco value chain across the country, such as consumers, tobacco farmers and retailers.
This is the second time the company has threatened court action against the ban. Last month, the company wrote to the government demanding the lifting of the ban when SA moved to level 4 lockdown, saying it would challenge the government in court if it did not accede to its demand.
BAT then backtracked on the decision, saying it would rather pursue further discussions with the government on the formulation of the regulations. However, it now seems no such discussions were held. BAT said it made every effort to engage with the government since the ban came into force, including making detailed submissions along with other interested parties to various ministers as well as directly to the presidency.
To date, no formal response had been received from the government, and BAT had also not been included in any of the government’s consultation processes, it said.
SARS HAD EXPECTED TO COLLECT R14.5BN ON EXCISE TAXES FOR TOBACCO