British American Tobacco South Africa (BATSA) says the public-health benefits of the ban on cigarette sales are “miniscule” when compared to the harm suffered by smokers, those working in the industry, and the economy.
The company’s highly anticipated challenge to the ban kicked off in the Western Cape High Court on Wednesday.
In their heads of arguments, BATSA’s advocates – Alfred Cockrell SC and Achmat Toefy – said the case was not about whether people should smoke during the pandemic but rather “who should make the decision”.
They argued the ban was a breach of smokers’ rights to dignity, privacy, and bodily as well as psychological integrity. They also argued it violated the rights of those working in the industry to choose their trade, occupation or profession freely.
BATSA’s legal team described Cooperative Governance and Traditional Affairs (COGTA) Minister Nkosazana Dalmini-Zuma’s position that allowing sales to continue during the Covid-19 pandemic would place a strain on the public health system as “an exercise in smoke and mirrors”.
“Insofar as the Minister’s concern is that smoking and vaping increase the risk that people may develop Covid-19 as a result of the repeated hand-to-mouth action associated with smoking and vaping, this concern could be addressed in a less restrictive manner by way of awareness campaigns regarding hygiene and hand washing. That is, after all, why the government has implemented widespread education and awareness campaigns to educate the public to take measures to reduce the spread of the virus,” they said.
“The government has not prohibited the sale of cold drinks merely because they are capable of being shared from the same bottle or can; it has rather educated consumers not to share bottles or cans.”
They argued the effect of the ban was counterproductive.
“The prohibition has added to the incidence of risky behaviour because it encourages the growth of an illicit market for cigarettes at exorbitant prices,” they said.
In any case, they went on, the dangers from cigarette smoking came as a result of long-term use.
“Even if this court were to find on the papers that the smoking population is more susceptible to certain Covid-19 risks, that susceptibility would be a function of years or decades of prior smoking,” they said.
They labelled a claim by the minister – to the effect that the ban was effective because while most smokers would attempt to break the law, some of them would be unable to afford the massively inflated price of illicit cigarettes – “bizarre”.
“In constitutional terms, it is perverse because it relies on unlawful conduct in order to achieve the intended outcome,” they said.
But even more perplexing, BATSA’s counsel charged, was that minibus taxis were now permitted to carry passengers at 100% of their licensed capacity for short-haul trips.
“The risk of the public health system being overwhelmed is much greater if commuters sit cheek by jowl in taxis than if smokers are permitted to continue smoking,” they said.
Arguments for the state began late on Wednesday but have not yet concluded, and the case will continue on Thursday.