Minister of Co-Operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma is fighting tobacco ban objections on all fronts.
The mix of COVID-19 and diseases like HIV and tuberculosis creates "a toxic concoction" with the potential to have a devastating impact on the lung health of populations with enhanced lung risks in South Africa, the Western Cape High Court has heard.
British American Tobacco SA (Batsa) and other cigarette manufacturers including tobacco farmers are challenging Minister of Co-Operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma's COVID-19 lockdown ban on the sale of tobacco products.
The minister has indicated that the aim of the ban is to stop people from smoking so that they do not get COVID-19 in a more severe form. It was argued last week on behalf of Batsa that any benefit achieved by the continued ban on tobacco sales would be outweighed by far by the damage caused. It was also argued that the Constitutional rights of tobacconists and tobacco farmers are being violated by the ban, which is putting the entire tobacco value chain was at risk.
Advocate Karrisha Pillay SC, argued on behalf of the minister that the ban seeks to reduce – and not completely eliminate – incidents of smoking and to free up critical resources to respond to severe cases of COVID-19.
Pillay said it is important to look at the context within which the minister made her decision on the ban as the pandemic had not peaked yet in the country.
"This court's role is not to assess which side's scientific evidence is better, but the question is whether, having regard to the evidence the minister had regards to, it can be said that she made a reasonable and rational decision," said Pillay.
She said scientific studies simply provide context and any particular scientific paper cannot be seen in isolation, especially due to the fast-evolving nature in dealing with the disease. Pillay referred to the view of an expert, which forms part of the minister's case and which states that the financial and human resources associated related to severe cases of COVID-19 is enormous and puts strain on the public health system. Pillay said the minister, a medical doctor by trade, herself read the majority of the relevant medical literature.
"The literature by its nature is complex and compounded by the newness of the disease. The minister says that the available evidence indicates that smokers are at risk of developing a more severe form of COVID-19, therefore, making her ban a rational one," said Pillay.
Advocate Alfred Cockrell SC argued on behalf of Batsa that, based on what the minister alleges in her court documents, just 10%–15% of the country's smokers will likely quit due to the ban because of the high price of illicit cigarettes.
Calling it a "perverse justification," Cockrell said the minister had not at any point said what would be done to stop people from purchasing illicit cigarettes.
Advocate Andrew Breitenbach SC, also appearing on behalf of the minister, said that in their evidence before the court, as far as he knows, there is no contention that smoking will be reduced due to the higher price of illicit cigarettes.
Cockrell further alleged that, based on figures given in the minister's court documents, Batsa's legal team made its own calculations and estimated that there would likely only be about 16.4 fewer ICU beds occupied at any given time due to the ban, compared to R38m lost to the fiscus daily in excise duties. This was without counting job losses across the value chain, he added.
Pillay disputed the assumptions made by the Batsa legal team in order to reach the figure of 16.4 ICU beds. She said figures given in the minister's legal documents and on which the Batsa team made its assumptions and calculations, were simply an attempt by the minister to give the court an indication of what the impact of the ban could be.
Cockrell called into question government's medical basis for the ban, saying while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of COVID-19.
Pillay explained the rationale behind the Minister’s decision. Among other things, notes TimesLIVE, Pillay said that, unlike Batsa, Dlamini-Zuma relied on peer-reviewed literature. “There is no question of my client's experts’ evidence being far-fetched,” said Pillay.
Emphasising the possible strain smokers could pose on the healthcare system, Pillay asked the court to remember that the Constitution says no-one may be refused emergency treatment and that the state has limited resources.
Pillay said ventilators – among other apparatus required for COVID-19 treatment – fall under emergency services. Dlamini-Zuma acknowledged that the cigarette sales ban is “a cautious approach”, but it was aimed at ensuring state resources are not overwhelmed.
In her voluminous court papers, Dlamini-Zuma said she relied on the expertise of, among others, Professor Leslie London, head of public health medicine at the University of Cape Town; Professor Kennedy Nyamande, head of pulmonology at the University of KZN; and the SA Medical Research Council’s Dr Catherine Egbe.
She admitted that scientific knowledge of COVID-19 is still evolving and the link between tobacco products and the pandemic is yet to be established. “However, the preponderance of the evidence from the studies that have been done so far is that the use of tobacco products may not increase the risk of transmission of COVID-19 but does increase the risk of developing a more severe form of the disease,” the Minister's court documents read.
Batsa’s legal team argued in the Western Cape High Court that any benefit achieved by the continued ban would be outweighed by far by the damage caused, notes News24. Cockrell said the ban was aimed at reducing the occupation of intensive care unit (ICU) beds by smokers during the COVID-19 pandemic. However, he argued, based on what Dlamini-Zuma alleged in her court documents, Batsa’s legal team had made its own calculations and estimated that there would likely only be about 16.4 fewer ICU beds occupied at any given time due to the ban, compared to R38m lost to the fiscus daily in excise duties. This was without counting job losses across the value chain, he added.
Cockrell called into question government's medical basis for the ban, saying that while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of COVID-19. According to Cockrell, there is a medical dispute regarding this. While Dlamini-Zuma has based her argument on medical literature, including a paper from the World Health Organisation, Batsa's medical expert says the evidence is mixed and inconclusive.
However, for the purposes of the case at hand, he said it was critical to establish whether there was an association between smoking and more severe cases of COVID-19; and secondly, whether this association would lead to more smokers stopping smoking during the pandemic.
The court should focus on this “narrower question”, he argued. Medical experts note the damage from smoking is cumulative and gradual, said Cockrell, adding that a short-term ban would be unlikely to deliver the benefits government was aiming for.
Cockrell said in his closing remarks that short-haul taxis are now allowed to be filled to 100% capacity but commuters are not allowed, when they get home from that taxi ride, to smoke a cigarette.
News24 reports that Cockrell argued that the overwhelming majority of smokers will continue to smoke, despite the ban on the sale of tobacco products. Furthermore, in his view, the Minister gives no evidence to show that the ban actually means ICU beds will never be swamped.
In the Fair-Trade Independent Tobacco Association (Fita) case, Dlamini-Zuma has dismissed a contention by Fita that the High Court ought to declare tobacco an essential item, notes as TimesLIVE report. “Cigarettes and tobacco do not, by their nature, fall into the same category as goods which are life sustaining or necessary for basic functionality,” Dlamini-Zuma argued in a responding affidavit to Fita’s application for leave to appeal a Gauteng High Court (Pretoria) decision, dismissing its challenge of the tobacco ban under lockdown. The matter is now before the Supreme Court of Appeal (SCA).
Dlamini-Zuma pointed out tobacco products “kill 115 South Africans daily”. “It therefore cannot be considered a ‘basic good’ akin to electricity and airtime,” she said. “Simply because a good is addictive (it) does not necessarily follow that it is therefore necessary for human survival or required for basic human functionality.” The Minister contended that there was no reasonable prospect of Fita’s application succeeding. There was also no compelling reason for the appeal to be heard.
“The High Court’s analysis on the issue cannot be faulted. Measures that serve to reduce the strain on the healthcare system must be considered to be strictly necessary,” she argued. She noted there was no evidence proving illicit products sold during the lockdown were more harmful than normal tobacco products, as Fita contended. “The test is not whether the prohibition is the best means possible to achieve the objective. It is rather whether the chosen means, being the prohibition, could rationally achieve the objective.”
Fita argues the prohibition on cigarette sales has failed and, therefore, there “cannot be any possible basis for the ban”. “Once it is accepted (as it must be) that the ban cannot be shown to have the effect of stopping smoking, there cannot be any possible basis for the ban,” Fita CEO Sinenhlanhla Mnguni said in an affidavit filed with the SCA, notes another TimesLIVE report.
Fita said the basis for and validity of the lockdown regulation imposing the ban needed to be assessed within the boundaries of the enabling legislation and “proper” interpretation of the Disaster Management Act.
Mnguni said in his affidavit that while Dlamini-Zuma stood firm with the contention that the threshold for the ban was one of “reasonable necessity”, it was reasonably possible the SCA would apply the threshold of “strict/absolute necessity”. “There is reasonable prospect the SCA would find that the undeniable reality of the illicit trade is dispositive of the contention that the means chosen by the Minister to achieve her stated objective are either rational or necessary,” Mnguni said. He argued that smokers continued to source the ongoing supply of cigarettes and tobacco products.
According to Mnguni, Dlamini-Zuma had continued to disregard the need to give “due and proper” weight to issues of fundamental importance such as “far-reaching economic, physical, psychological and social considerations”. He argued that issues which required determination by the SCA had been raised by Fita in its application. “The prohibition in question and in the context of ministerial decree is unprecedented in SA and is currently not in place anywhere else in the world,” Mnguni said.
And now smokers, who argue that they are good enough for excise duty used to fund the healthcare system, have applied to the Constitutional Court for direct access to have their pleas heard, Beeld reports. The smokers formed a non-profit organisation, Justice for RSA. The NPO says in its application that the protracted court cases between the tobacco industry and the government do not have the interests of South African smokers at heart.
Bradley Timothy Hirner, one of the founders of the group, says in his affidavit smokers feel like “pawns in an increasingly confusing situation where we have no voice about what happens to us while a faceless entity dictates what we may and may not put into our bodies”. The NPO adds that although smoking is not banned, the tobacco sales ban infringes on their constitutional rights, such as dignity, as they are forced to become criminals.
Many smokers, the NPO argues, are becoming increasingly desperate and some even contemplate suicide. The smokers say very few actually quit due to sales ban and the government seems to ignore the fact that smokers simply do not want to quit and have the right to smoke if they wish. The NPO says it has 57,000 supporters for the case and crowd-funded for legal fees.
[link url="https://www.polity.org.za/article/mix-of-covid-19-and-other-illnesses-creates-a-toxic-concoction-court-hears-in-batsa-case-2020-08-06"]Full Polity report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2020-08-06-tobacco-ban-is-to-protect-health-care-system-nkosazana-dlamini-zuma-tells-judges/"]Full TimesLIVE report[/link]
[link url="https://www.news24.com/fin24/companies/agribusiness/cigarette-sales-ban-based-on-perverse-justification-court-hears-20200805"]Full News24 report[/link]
[link url="https://www.news24.com/fin24/companies/agribusiness/ride-in-a-crammed-taxi-but-minister-worried-about-smoking-once-youre-home-batsa-lawyer-20200806"]Full News24 report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2020-08-11-tobacco-products-kill-are-not-essential-nkosazana-dlamini-zuma/"]Full TimesLIVE report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2020-08-11-people-are-beating-cigarette-ban-so-it-must-be-unreasonable-fita-says-in-latest-court-battle-against-ndz/"]Full TimesLIVE report[/link]
[link url="https://www.netwerk24.com/Nuus/Hof/rokers-smeek-konstitusionele-hof-nou-om-te-help-20200810"]Full Netwerk report (subscription needed)[/link]