Judgment reserved in BATSA tobacco ban constitutionality challenge
The onus is upon the minister to justify the rights limitations effected by the regulation.
Whether or not government’s ban on the sale of tobacco products during lockdown is justifiable, remained at centre stage in British American Tobacco South Africa’s (BATSA) urgent application hearing that continued in the Western Cape High Court today.
Since yesterday, a full bench of judges have been hearing arguments by Advocate Alfred Cockrell SC, on behalf of the applicants represented by Weber & Wentzel attorney Michael Evans, and Advocates Andrew Breitenbach SC, and Karrisha Pillay, on behalf of the respondents.
- The applicants
BATSA is South Africa’s largest cigarette manufacturer and its brands include Lucky Strike, Dunhill and Peter Stuyvesant. Fellow applicants include Japan Tobacco International SA. Black Tobacco Farmers Association, Limpopo Tobacco Processors Ltd, the South African Tobacco Transformation Alliance and the South African Informal Traders Alliance.
- A two-legged approach
The pro-tobacco sales legal team’s onslaught stands on two legs. The first is constitutional and the second rests on the principles of administrative law.
- No in-person witnesses
Because this is an urgent application, written witness submissions are considered as opposed to in-person evidence.
Click here for more: Witness versions, reports as disputed by the applicants.
- BATSA’s unconstitutionality argument: does the tobacco sales ban mean a substantial increase on available hospital beds?
Cockrell argued that the ban infringes upon various constitutional rights of South Africans and, more particularly, smokers. This, he said, includes the rights to free trade, dignity and physical and psychological integrity.
According to BATSA’s legal team, the onus is upon the minister to justify the rights limitations effected by the regulation.
Pillay said that the motivation behind the government continuing with the tobacco man is to protect human life and health and to reduce strain on the public health system. She also argued that the state has the duty to prevent the spread of Covid-19.
In the Minister’s response to the application, the minister cited experts indicating that if South Africa’s smokers all quit, this could free up 4000 hospital beds. This is denied by the applicants in paragraphs 59 and 60 of their heads of argument. With reference thereto, Cockerill said that, instead, continuing with the tobacco ban could provide merely 16.4 extra beds at any given time. He also denied that documentary testimonies from the government’s witnesses were not scientifically sound.* This allegation was, in turn, denied by Breitenbach and Pillay, who stressed that studies referred to in the respondents’ court papers had been peer-reviewed.
The means, Cockrell seemed to argue at the time of publication, cannot be justified by this end.
Click here for more on this morning’s events in court.
- Could a less restrictive rule have been applied?
He also stressed that the minister should have considered whether any less restrictive measure could have been implemented to secure the outcome set out by both Pillay and Breitenbach. He illustrated this principle (as it relates to the rationality of such a constitutional rights infringement) with this analogy.
Towards the end of today’s proceedings, Cockrell referred to the economic consequences of the ban that he had stressed before. In his founding affidavit, Batsa CEO Andre Joubert said, among other things: “The continued prohibition on the sale of tobacco and vaping products causes harm not only to individual consumers but also to Batsa, the tobacco industry and the fiscus.” Government has, according to Cockrell, been losing R38 billion per day as a result of the ban.
In response to Breitenbach conceding that the country had been harming itself in the process, Cockrell retorted that it is, in fact, South Africans and generations to come that will be harmed by these economic losses.
- Administrative law
Regarding the administrative law issue, the applicants submitted that the making of South Africa’s lockdown regulations amounted to administrative action in terms of the Promotion of Administrative Justice Act. Breitenbach did not agree. In her affidavit, the minister contended that the making of these regulations constituted executive, and not administrative, action.
Click here for more on court events at noon
*The parties had questioned the validity of one another’s evidence and testimony. At the time of publication, judgment has not yet been passed and the court’s findings in this respect remain unknown.
Notice: Coronavirus reporting at Caxton Local Media aims to combat fake news
Dear reader,
As your local news provider, we have the duty of keeping you factually informed on Covid-19 developments. As you may have noticed, mis- and disinformation (also known as “fake news”) is circulating online. Caxton Local Media is determined to filter through the masses of information doing the rounds and to separate truth from untruth in order to keep you adequately informed. Local newsrooms follow a strict pre-publication fact-checking protocol. A national task team has been established to assist in bringing you credible news reports on Covid-19.
Readers with any comments or queries may contact National Group Editor Irma Green (irma@caxton.co.za) or Legal Adviser Helene Eloff (helene@caxton.co.za).
