Tobacco ban remains rational — Dlamini-Zuma
• Dlamini-Zuma urges judge to retain the prohibition, saying her decision has support from the medical fraternity
If the high court finds that the regulations banning cigarette sales under the lockdown are unlawful, co-operative governance & traditional affairs minister Nkosazana DlaminiZuma has urged that they be referred back to her for reconsideration. “In the event that the court considers the decision-making process to have been flawed, or based on incorrect facts, I submit it would be just and equitable to keep the prohibition in place ... pending a reconsideration, possibly with directions as to the information or factors to be considered,” the minister states in court papers filed in the early hours of Thursday.
If the high court finds the regulations banning cigarette sales under the lockdown are unlawful, co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma has urged that they be referred back to her for “reconsideration”.
“In the event that the court considers the decision-making process to have been flawed, or based on incorrect facts, I submit it would be just and equitable to keep the prohibition in place ... pending a reconsideration, possibly with directions as to the information or factors to be considered,” the minister states in court papers filed in the early hours of Thursday.
Dlamini-Zuma initially faced the prospect of being pursued for contempt of court for missing the deadline to file her affidavit in the challenge to the cigarette ban by the Free Trade and Independent Tobacco Association (Fita) by the close of business on Wednesday, but managed to file her answer just after midnight.
State attorney Arista
Wasserman had written directly to judge president Dunstan Mlambo the day before DlaminiZuma’s deadline, to ask for a second time that the hearing of Fita’s case, which is set for June 9 and 10, be delayed by at least two weeks.
On Thursday, Mlambo’s registrar wrote to all parties in the case and informed them that he did not “intend engaging with the parties prior to the hearing” regarding a request to postpone through correspondence.
Should the state want to apply for a postponement of the case, he said, it needed to do so through a formal process.
Dlamini-Zuma, meanwhile, reiterates that her decision to promulgate the smoking ban regulations was motivated by evidence “that smokers are more likely to develop severe disease with Covid-19, compared to non-smokers”.
The minister dismisses arguments by Fita that cigarettes should be categorised as “essential goods” and therefore be available for sale under all lockdown levels.
“A product that kills 115 South Africans daily cannot be considered as essential,” she states.
“More so in the face of an illness of this scale, which is also a respiratory illness and whose disease progression has been shown to be accelerated by use of this product.”
She says additional medical literature has bolstered the government’s controversial cigarette ban decision and renders Fita’s challenge to its rationality “clearly unsustainable”.
The minister further maintains there is evidence that many smokers have quit as a result of the ban, which she says demonstrates that the decision to impose it remains rational.
She denies that the cigarette ban has resulted in a boom in the illicit cigarette industry and says Fita has “provided no admissible evidence to this effect”.
While acknowledging that the ban may have resulted in economic loss, she says this needs to be weighed against the health-care costs associated with treating smokers — with or without Covid-19.
“It is therefore not the case that the state only incurs costs if tobacco sales are prohibited.”
While stating that she never claimed that the medical literature she previously relied on to justify the cigarette ban was “absolutely conclusive”, the minister is adamant that “the available evidence does indicate that smokers are at a heightened risk of adverse Covid-19 outcomes”.
“This, I submit, renders a prohibition of the sale of tobacco products a rational and necessary measure to protect the public.”
Dlamini-Zuma has also criticised Fita for amending its original legal challenge to the level 4 cigarette ban to also include the ban imposed on tobacco sales under level 3. She argues that this is “irregular” and amounts to Fita seeking to “review an entirely new decision” without the court having access to the new material that may have informed that decision.
Dlamini-Zuma has, however, included much of the evidence she says informed the decision to extend the tobacco ban when SA went into level 3 lockdown.
According to the minister, that decision was informed by “additional medical literature” and “additional views were canvassed from the SA medical fraternity”.
She stresses that SA’s Covid19 epidemic “has not yet peaked”. “The expectation is that infection numbers will continue to rise in the coming months. The lower lockdown level therefore does not indicate a lower strain on the public health-care system.
“Instead, it is likely that there will be a significant increase in demand for ICU [intensive care unit] beds and ventilators over the coming weeks and months.”
Dlamini-Zuma says the World Health Organisation has confirmed — after she promulgated the cigarette ban for level 4 — that “smokers are more likely to develop severe disease with Covid-19, compared to non-smokers”.
Dlamini-Zuma says the cigarette ban has also been supported by “various organisations within the SA medical fraternity” — including the National Council Against Smoking, the SA Thoracic Society, the College of Public Health Medicine and the Heart and Stroke Foundation of SA. That support, contained in several letters, was also expressed after the minister promulgated the regulation extending the tobacco ban under level 4.
A PRODUCT THAT KILLS 115 SOUTH AFRICANS DAILY CANNOT BE CONSIDERED AS ESSENTIAL, SHE STATES
SA’S COVID-19 EPIDEMIC HAS NOT YET PEAKED. THE EXPECTATION IS THAT INFECTION NUMBERS WILL CONTINUE TO RISE