Ruling on tobacco ban next week

SMOKERS will have to wait until next week to hear if leave to appeal will be granted against the judgment banning the sale of cigarettes and tobacco products during the lockdown.

The Fair Trade Independent Tobacco Association (Fita) yesterday asked for leave to appeal against the Gauteng High Court ruling in the Supreme Court of Appeal (SCA).

It argued that there were reasonable prospects that the SCA would come to a different finding.

Arguing on behalf of Fita, advocate Arnold Stubel cited at least 10 grounds on which it claimed the court came to the wrong decision when it ruled against the lifting of the ban on selling cigarettes and related products.

Stubel said the issue was mainly whether Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma’s decision to enforce the ban was rational. He submitted that it was not.

He said the matters raised were of enormous public interest and touched on uncharted legal terrain.

According to Stubel, not only the rights of smokers were at stake; the ban also had a huge economic impact.

“These are compelling reasons why the appeal court should have another look at these issues,” he said.

He added that while a similar matter was pending before the Western Cape High Court next month, this was the first and only matter in which a court had given judgment on the issue, making it even more important that the matter was reconsidered by the SCA as a matter of urgency.

“We don’t have to convince this court that it was wrong in its findings; we must only prove that there are reasonable prospects on appeal,” he said.

While the government’s stance was that smokers would place a burden on the health resources needed to treat Covid-19 patients, Stubel said no credible evidence was submitted to prove this.

He argued that the government had based its argument on unsubstantiated health surveys and there was no evidence that smokers would compromise the health system.

He said the scientific evidence relied on by the government to prove its point was inconclusive and of low quality.

Stubel argued that the government could only place a ban on the sale of tobacco products if it could prove it absolutely necessary to achieve the end of not placing a burden on the health system.

“We believe that the appeal court will find that the ban is not necessary to the objective of the means.”

Stubel said apart from some people who had raised objections, there was no justification for the minister not to have lifted the ban.

In opposing the application, advocate Marumo Moerane, on behalf of

the government, argued that the application was misconceived.

He told the court the association did not care as much about smokers as it did about its own pockets, which were being affected by the ban placed on the sale of tobacco products.

Judge President Dunstan Mlambo, who headed the three-judge Bench, said while he understood that the matter was urgent, they would consider all of the arguments and deliver judgment some time next week.