Tobacco industry all fired up for court battle to lift smoking ban

THE FAIR TRADE Tobacco Association (Fita) has vowed to resist any attempts by the government to delay the hearing on the legality and rationality of the ban on the sale of cigarettes as the parties square off in the North Gauteng High Court in Pretoria today.

Fita wants the court to hear its main application in which it argues that the government has failed to provide it with substantial reasons which support its claim that the ban was one of the remedies to fight Covid-19.

In court papers, Fita chairperson Sinenhlanhla Mnguni argues Regulation 27 of the then level 4 and now level 3 was “self-evidently irrational” because it ignored a significant number of people who had tried to have their views heard on the ban. “The regulation is exacerbating the already trying circumstances of millions of South African citizens who are already emotionally fragile, causing increased stress for them.

“There has been a clear failure to balance the interests of citizens who are legally entitled to purchase cigarettes and tobacco products with measures that may responsibly and legitimately be taken to combat the pandemic.”

After President Cyril Ramaphosa announced the continued ban on May 24, Mnguni cried foul: “We were not consulted. There was no engagement with our sector, which contributes billions to the economy. After the initial announcement of the lockdown draft regulation which recommended the lifting of the ban, the government invited people to comment.

“A total of 2 000 comments were received, and they decided to overturn the decision. But they did not bother to consult us before the recent decision.”

Following numerous postponements of their main application, Mnguni is adamant that the court now deal with the ban. Mnguni also believes the government is wrong in arguing that smoking is one of the major causes of the increase in coronavirus cases, including death, arguing that it is not limited to cigarettes.

“None of the ministers, most importantly Health Minister Dr Zweli Mkhize, have demonstrated how a prohibition on the sale of cigarettes assists in preventing or reducing the spread of Covid19,” Mnguni said.

Public comments on the issue had been limited to the ills of smoking, he said, but none had been adequately linked to the fight against the pandemic. Any food or substance that is deleterious to health would also fall in the category of what is harmful to health,” he said.

Mnguni said his legal team will ask what constitutes the specific source of the State’s power to prohibit the sale of cigarettes.

The legal team is also expected to argue that illicit trade in cigarettes is growing, owing to the ban, apparently causing massive financial losses for their clients.

The government, however, is hoping the court will postpone the hearing, to allow it to file its appeal papers against last week’s ruling, which declared some of the lockdown level 4 regulations unconstitutional and invalid. That ruling did not make any determination on the sale of tobacco due to the Fita’s case.

Meanwhile, Ramaphosa has not made an undertaking as to when the tobacco ban will be lifted. He was replying to a parliamentary question by DA MP Annette Steyn who quizzed him on the government’s decision to ban the sale of tobacco products during the lockdown.

“At this stage, it is difficult to determine when the ban on the sale of tobacco and related products will be lifted. This will depend on such factors as the progression of the disease in South Africa, the readiness of our health systems and evolving knowledge on the nature and impact of the virus itself,” Ramaphosa said in his response.