The Fair-trade Independent Tobacco Association (Fita) has said government was ‘obsessed’ with alcohol and cigarettes.
“What we find here is an obsession with alcohol and cigarettes. We know that alcohol has now been permitted and we submit, on the evidence, that it is far more harmful to health services,” advocate Arnold Subel SC – for Fita – told the High Court in Pretoria on Wednesday morning.
This as the association’s highly anticipated challenge to the ban on cigarette and tobacco sales finally got underway.
Last month, Fita launched an urgent application challenging government’s controversial ban on tobacco sales during the national lockdown. The association has already achieved partial success with the first part of the application, in which they wanted the minutes from the meetings at which the National Command Council decided on the lockdown regulations and, specifically, the tobacco sales ban. Government refused to provide the minutes but agreed to furnish Fita and the court with a record of decision, which it did last week.
It is the second part of the application, in which Fita wants an order declaring the sale of cigarettes and tobacco products is lawful, that is now before the court.
“Nobody is suggesting tobacco isn’t harmful but there’s legislation that deals with tobacco. The legislature has got legislation in place to regulate and control the smoking of tobacco products,” Subel said on Wednesday.
“When we look at the Tobacco Control Act, there’s got to be very careful supervision and control of tobacco products. What is flourishing now is uncontrolled, harmful and probably more addictive.”
He argued that there had been “steely determination” on the part of government to keep the ban in place.
“And for what purpose? To alleviate the strain on health services. But then we have to find that there’s a rational link between the two,” he went on.
Subel maintained that tobacco products constituted basic goods for smokers, “like food and cleaning products”.
He said Cooperative Governance and Traditional Affairs (COGTA) Minister Nkosazana Dlamini-Zuma had determined that “if you stop people smoking, they’ll get over it”.
“But it’s a very serious addiction… You can’t simply switch off,” he said.
Subel said that with each passing day, there was “enormous harm” being done to the economy and to people’s well-being.
“And the poorest of the poor are the ones suffering the worst because they’re having to pay black market prices for banned substances,” he said
Representing the government, advocate Maruma Moarene SC argued that government had to be proactive and swift in their response to the Covid-19 pandemic resulting in the continuation of the ban.
Moerane argued the ban did not have to be “absolutely necessary” but rather that it had to be “reasonably” so.
“FITA argues that the impugned regulations are not necessary … We submit that the test of absolute necessity does not apply,” he said. “It cannot be required that the minister show proof – in the sense of absolute certainty – that unless the measure in question is imposed, the health system will definitely collapse … What is required is that the minister have a reasonable basis on which to conclude that without the prohibition there’s a real risk to the health system.”
“Although the body of knowledge is increasing, what science tells us at present and what science tells is probable has to guide our actions,”.
This was in response to arguments that the research government had relied on when deciding to ban cigarette and tobacco products sales, was largely inconclusive.
“Fita says it’s common cause that the research is inconclusive. We submit that’s not true,” he went on. “Emerging medical literature indicates smokers are more likely to develop a more severe form of Covid-19”.
The court asked Moerane: “If one accepts for a moment that people who smoke are more likely to get sick from Covid-19 … How does a ban on the sale of cigarettes – in circumstances where people are not going to stop smoking, achieve the desired outcome?”
He replied that smoking could never be completely prohibited but that research indicated there had been a reduction in smoking since the ban was effected.
Government had previously said the implementation of the sales prohibition seeks to free up critical resources needed to respond to cases of Covid-19, which would otherwise be occupied by smokers.
Meanwhile, the British American Tobacco South Africa also filed a legal application against the government over the ban on cigarette sales at the Cape Town High Court last week, which gave the government time until Friday afternoon, 5 June to respond to the legal challenge on the ban.
The story is being updated as the proceedings progress