Fita appeals to courts to stop being 'unduly deferential'

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Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma has criticised the Fair-Trade and Independent Tobacco Association’s efforts to appeal the High Court’s refusal to overturn the cigarette sales ban as nothing more than “nit picking”. But, notes a Business Day report by legal writer Karyn Maughan, Fita Advocate Arnold Subel has urged Gauteng Judge President Dunstan Mlambo and Judges Daisy Molefe and Annali Basson at the High Court (Pretoria) t” reject that argument and contended that courts should not be “unduly deferential’ to the state in their evaluation of government’s decision to impose the ban – now the only one of its kind in the world.

This, he argued, was because the government’s decision to impose the ban four months ago was not informed by any real expert evidence. He says the state has failed to show that there was a definite connection between the ban and significant numbers of South Africa's 8m smokers actually quitting. Fita also contends there is ample evidence that rather than resulting in smokers quitting, the ban has simply resulted in a boom in the illicit tobacco trade.

The court reserved judgment on whether to grant Fita the right to appeal against its cigarette ban decision in the Supreme Court of Appeal (SCA), with Mlambo stating that the court would deliver its ruling next week.

Fita has raised 10 main grounds of attack on the High Court’s dismissal of its cigarette ban challenge, which could have significant implications for how courts evaluate the legality, and rationality of government COVID-19 regulations, imposed under the provisions of the Disaster Management Act, says Business Day. Mlambo and his colleagues dismissed Fita’s challenge to government’s tobacco ban, after finding that there was a “rational connection” between the prohibition on cigarette sales and the government’s stated objective of using it to save lives.

Fita, however, contends that the law clearly shows that the government should be additionally required to show that the ban is ‘strictly necessary’ to reduce the health effects of COVID-19. Advocate Marumo Moerane, for Dlamini-Zuma, argued that such a requirement would effectively “hamstring” the Minister from “imposing any measure to deal with the disaster on which any doubt could possibly be raised”. “This interpretation would undermine the Minister’s attempts to promote and protect the rights to life and healthcare,” he argues.

Business Day notes that until now, the courts have ruled largely in favour of the government in a variety of COVID-19 regulation challenges – an indication, arguably, that the judiciary is reluctant to intervene in state decision-making in response to the increasingly prolific pandemic.


Subel, however, contended there were reasonable prospects that another court would reach a different conclusion, says a TimesLIVE report. “There is a reasonable prospect that the SCA will find the ban was not necessary.” The ban on the sale of tobacco products, Subel argued, had not stopped anyone from smoking.

“Realistically, experience has always demonstrated that ultimately smokers will source tobacco. The sale of tobacco cannot be prevented. There is a reasonable prospect that the SCA would find that a far more serious risk is posed to health and the burden on the health system by illicit products being sold and used – products which are not regulated and controlled as they should be under national legislation, and which most likely contain most dangerous substances and additives,” he argued.

“The shutting down of an entire industry was not rationally justifiable nor necessary because of a speculative possibility. A vast number of people derived their livelihoods from the tobacco industry, and it is their only means to survive. The collapse of an industry and the job losses from farm workers to retailers is highly prejudicial,” Subel argued.

However, Moerane argued that none of the grounds offered by Fita bears any reasonable prospects for success. “The Minister has done that which is reasonably necessary to save lives and fulfil her constitutional obligations," he said. He said measures that served to reduce the strain on the country's healthcare system must be considered to be "strictly necessary".

For Fita to succeed it would have to persuade an appeal court to “entirely” rewrite the established rationality test, Moerane argued. “There is no reasonable prospect that an appeal court would do so. Leave to appeal on this ground should therefore be refused.”


Full Business Day report


Full TimesLIVE report

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