The ban on tobacco product sales was never meant to stub out smoking completely.
So said Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s legal team in the Western Cape High Court on Thursday morning, as British American Tobacco South Africa’s (Batsa) legal challenge to the ban got into its second day.
“The implementation of the ban seeks to reduce – she [Dlamini-Zuma] doesn’t seek to eliminate it completely but to reduce – the incidence of smoking and, in so doing, free up the critical resources needed to respond to severe cases of Covid-19,” advocate Karrisha Pillay SC, who is representing the minister, told the court.
Pillay emphasised that the “overarching reasons” for the decision to continue the ban was “to protect human life and health”.
“And to reduce the potential strain on the public healthcare system,” she went on.
Pillay pointed to the importance of this in light of the steep rise in the rate of infections the minister had at the time predicted would result from the easing of the original lockdown restrictions.
“We know now with the benefit of hindsight that she’s been proven right,” she added.
Pillay highlighted that in terms of the Bill of Rights, no-one could be refused emergency medical treatment.
“That right is not subject to the constraints around available resources or progressive realisation. It’s provided for in fairly clear-cut terms,” she said. “And we submit access to ventilators and ICU beds, falls squarely within the right not to be refused emergency healthcare.”
She said the minister accepted that the science around transmission was “mixed” but that lifting the ban would increase the strain on the public healthcare system.
“It would increase the number of persons who need hospitalisation and access to resources such as ventilators and ICU beds,” she said. “Smokers have higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non-smokers and therefore – as a consequence – it would increase the strain on our limited healthcare resources”.