Judgment reserved after FITA’s tobacco ban challenge

South Africa’s ban on tobacco sales is irrational, damages the economy and drives smokers to buying illicit cigarettes. This is according to Advocate Arnold Subel SC, who argued for the ban being lifted in the Pretoria High Court today (June 10).

Subel represented the Fair Trade Independent Tobacco Association (Fita) in its application for the abolishing of the regulation which many have labelled ‘draconian’.

According to Subel, only South Africa and Botswana have included such a ban in their measures to limit the spread of Covid-19. After prohibiting tobacco sales on March 26, President Cyril Ramaphosa announced that tobacco sales would reinstated during a subsequent April briefing. Yet the rug was pulled out from under smokers with an announcement to the contrary was delivered by Co-Operative Governance and Traditional Affairs Minister, Nkosazana Dlamini-Zuma shortly thereafter.

Zuma alleged the link between smoking and Covid-19 had motivated government to further extend the ban. The existence of this link was questioned by Subel today. He said no conclusive scientific findings exist on which the claim can be based. “If you don’t know, you have no basis to prohibit,” he held, adding that the processes employed by government to curb the virus from spreading have lost credibility and rationality.

Although Subel did not challenge the constitutionality of the regulations, the terms he used to label the ban resonated those used by Judge Norman Davis when describing lockdown level 3 and 4 regulations in his judgment in the same court last week. Government has since applied for leave to appeal the Davis judgment.

Advocate Marumo Moerane SC represented government in court today. He said  Dlamini-Zuma had acted within the scope of her powers and that the smoking ban could be justified. Moerane argued that the state’s duty to reduce the virus’ burden on the health system had to be effected with an urgent decision. Although he said that studies from credible institutions exist to justify the ban, he stated: “We don’t have the luxury of having inquiries that will take time and consume resources of the state before action is taken.”

When Mlambo referred to Subel’s arguments on the evidence, Moerane retorted that the inconclusiveness of that evidence remains in dispute.

Subel argued that tobacco addicts are suffering under the ban and it has pushed them into buying illicit cigarettes. This result, he said, could be damaging to these smokers and has had a devastating effect on the tobacco industry. He stressed that this issue required thorough, quality research and that this had not been done, rendering the ban unjustifiable.

Mlambo has suspended judgment.

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