Controversy swirls around Western Cape JP over tobacco challenge

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By making a decision a lawyer said he had never seen before in 33 years of practice, controversial Western Cape Judge President John Hlophe has been placed in the centre of a row over the delayed legal challenge against the ban on cigarette sales brought by tobacco giant British American Tobacco SA (Batsa), notes Legalbrief.

Hlophe overturned an agreement to hear the matter on Tuesday last week and instead postponed it by more than a month, without giving reasons, which, according to a Sunday Times report, left the litigants fuming and threatening to take the case to another court.

The applicants later found out that the State Attorney had written to Hlophe without consulting them, agreeing the case be delayed on the basis that the litigants had included “substantial new matters” in their responding affidavits, including testimony from two experts. But the applicants insist that no new matters were introduced and everything they included was in response to what Dlamini-Zuma had raised.

Evans later wrote to his clients, telling them what happened: “In my 33 years of practice I have never seen a situation like this before, where the parties are given the go-ahead in urgent application to agree on a date, they do so, all the papers are filed, and two days later that decision is reversed.” He said they had thought about transferring the application to the Gauteng High Court (Pretoria) on an urgent basis, but the State Attorney’s Office did not agree.

“This is a unique scenario which I cannot explain,” he wrote. Evans reportedly told the Sunday Times: “What prompted the Judge President, when he had said we could agree on a date, to suddenly shift the date to 4 August? The second question is, assuming the Minister needed more time to reply to our papers, why six weeks and not two weeks?” Evans said his clients had no choice but to abide by Hlophe’s decision. Three judges have been assigned to hear the matter in August.

On Friday, Lunga Mtshali, spokesperson for Dlamini-Zuma, had rejected “misleading public comments by Batsa” that the government had caused a delay in the matter, notes the Sunday Times. “The comments attributed to Batsa’s spokesperson in the media to the effect that the government is the cause of the delay in the hearing are inexplicable, and are incorrect. It was the Judge President alone who decided the matter should be heard in early August.”

 

The furore follows the courts dismissing two major actions challenging the ban on tobacco sales. On Friday, 26 June, the Gauteng High Court (Pretoria) judges dismissed the first major legal challenge to the tobacco products sales ban. The judges found there is indeed a “rational connection” between the ban and government’s objective of using it to save lives. What effect this might have on a similar, but more formidable challenge, on paper at least, by Batsa, which has now been delayed to August, is a matter for consideration.

According to a Business Day report by legal writer Karyn Maughan, Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma has argued that the ban was put in place because of evidence that smokers are more likely to suffer more severe COVID-19 complications, including death. She contended that banning the sale of cigarettes would result in a large number of South Africa’s 8m smokers quitting, therefore reducing the possible strain of their COVID-19 complications on the country’s already overburdened health system.

Judge President Dunstan Mlambo and his colleagues were satisfied Dlamini-Zuma had made her decision objectively, after considering “all the relevant medical literature – even evidence that may have been at odds with the view linking high COVID-19 virus progression among smokers when compared with non-smokers”.

“The Minister also refers to the reality that South Africa faces as a developing country that has a shortfall of essential healthcare resources, such as ventilators and ICU facilities.” The judges repeatedly stressed they had been called on to evaluate, not whether the cigarette ban was the best or most suitable way for the state to address possible COVID-19 health system threats, but “whether there is a rational connection between the ban … and the saving of lives through curbing infections and preventing a strain on the country’s healthcare facilities”. “This, we are satisfied, the Minister has been able to demonstrate,’”Mlambo stated.

The judges brushed aside the irrationality argument by lobby group Fair Trade and Independent Tobacco Association (Fita), notes Legalbrief. According to Maughan’s Business Day report, it had argued that South Africa’s status as one of only two countries in the world to impose such a ban clearly undermined the rationality of such a ban.

“The decision to ban tobacco products was, as explained by the Minister, taken with reference to the South Africa context and its preparedness to deal with the COVID-19 virus,” Mlambo stated. “It is of no consequence, nor does it retract from the firm rational basis underpinning the ban, that other countries have not adopted similar measures.”

Mlambo and his fellow judges also rejected Fita’s argument that the cigarette ban was irrational, because it had not resulted in smokers quitting, as argued by Dlamini-Zuma, but had instead resulted in a boom in the illicit cigarette trade. “Again, the means adopted by the Minister in ensuring that smokers ceased smoking may not have been the most effective or the best means possible, but the test for rationality is not concerned with this. In terms of the rationality inquiry, there merely needs to be a rationally objective basis justifying the conduct of the Minister. Once this hurdle is overcome, the conduct of the Minister is deemed rational,” he said. “Our view is that the reality of the illicit trade of tobacco products is not fatal to the rationality of the ban, given that the Minister only needs to show that the means chosen to achieve the intended objective were reasonably capable of achieving it,” the court stated. Fita reportedly told Business Day that it intends to appeal the ruling.

 

The second success for government came when the Batsa case against the ban was delayed to August. BusinessLIVE reports that Hlophe issued directives that the application should be heard by a full Bench of the Western Cape High Court on 4-5 August – more than a month after the expected 30 June hearing data.

Batsa said the decision was inexplicable. “This delaying of justice and a resolution of this issue is inexplicable. By the time the case is heard the ban will have been in place for four-and-half months during which time billions of illegal cigarettes will have been sold,” said Johnny Moloto of Batsa. “We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard (on Tuesday 30 June),” he said.

 

Ironically, following the summary court dismissal of the Batsa challenge, News24 had described as “hard-hitting” the Batsa arguments that the government’s tobacco ban is irrational and based on faulty evidence.

In her court papers, Dlamini-Zuma controversially argued that the economic damage from the cigarette ban was being partially mitigated by a flourishing illegal market – representing economic activity. Then Batsa hit back in papers lodged with the High Court this week.

In an affidavit, Batsa CEO, Andre Joubert, argued Dlamini-Zuma failed to make a convincing legal argument that the cigarette ban was legally necessary; failed to make a legitimate health arguments to show smoking increased the chance of contracting COVID-19, or that smokers would be worse-off if they did contract the virus; and failed to show the ban had stopped the purchase of cigarettes. Instead, Dlamini-Zuma had admitted 21bn cigarettes would likely still be bought – illegally – without due taxes accruing to government, leading to a multi-billion-rand loss in government income.

Batsa had presented two “expert affidavits” in support of its application. One was from Dr Jaymin Morjaria, who is a consultant physician in respiratory medicine at the Royal Brompton & Harefield Hospital in Middlesex, England. Morjaria specialises “in treating patients with airways disease such as asthma and chronic obstructive pulmonary disease, and lung disorders like cancer, bronchiectasis, and pleural disease”. The doctor reported he has treated COVID-19 patients personally, and researched “epidemiology and patient demographics … with particular reference to the literature regarding smoking and COVID-19”.

The second expert was Richard Murgatroyd, partner at RBB Economics. In his affidavit, notes News24, Joubert argued that when Dlamini-Zuma admitted “I do not say that the medical literature is absolutely conclusive” – she lost the credible right to then claim it is “necessary” to prohibit the sale of tobacco and vaping products.

Citing Morjaria’s expertise, the papers argue that there is “no consensus” in relation to smoking being a risk factor for COVID-19 risk progression – rather, currently available data suggests that risk factors for severe COVID-19 include older age, male gender, medical comorbidities including cardiovascular diseases, diabetes, hypertension, increased body mass index, chronic kidney disease, solid organ transplants and chronic pulmonary diseases.

“While some of these generally accepted risk factors can be caused by smoking (as noted in the first and second respondents’ answering affidavit and in the affidavits of the respondents’ medical experts), the impact of smoking in relation to these diseases occurs over a long period of time, often many years (not weeks or months),” the documents state.

 

Full Sunday Times report

 

Full Business Day report

 

Judgment

 

Full BusinessLIVE report

 

Full News24 report

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