The Fair Trade and Independent Tobacco Association (Fita) is fighting for its cigarette sales ban challenge to be urgently heard by the Supreme Court of Appeal, on the basis that it is a “matter of national importance” that has profound implications for how the government’s COVID-19 regulations are evaluated by the courts.
The Gauteng High Court in (Pretoria) ruling dismissing Fita’s challenge to the tobacco sales ban, the only one of its kind in the world, arguably gives the government unprecedented levels of power to impose COVID-19 regulations with almost no prospect of any legal challenge to questionable regulations succeeding, suggests legal writer Karyn Maughan in a Business Day report.
The decision follows a series of judgments in which the courts have ruled almost completely in favour of the state in challenges brought against the rationality and legality of its regulations, as well as the way in which they are being put into force. Maughan notes courts have routinely been urged by the government not to overstep the bounds of their powers. While that warning previously did not deter the judiciary from overturning poor state decisions, the unpredictable COVID-19 crisis has seen the courts pull back from such interventions.
It appears that courts do not want to face accusations that they are attempting to co-govern a country in the midst of an unprecedented health and economic disaster. The Fita case appears to provide evidence of that reluctance.
In the matter before the court, notes Business Day, Judge President Dunstan Mlambo and two of his colleagues found that all that was required of the government, in demonstrating that its economically devastating tobacco sales ban was legally justified, was to show that there was a rational connection between the prohibition and its aim of using it to save lives and prevent the spread of COVID-19.
The judges rejected Fita’s argument that the law required the government to show that regulations promulgated under the provisions of the Disaster Management Act were “strictly necessary”, not just rationally connected to the aim of reducing the effect of the pandemic.
The court accepted Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma’s argument that the ban was aimed at reducing the strain on South Africa’s overburdened health system, by reducing the number of smokers vulnerable to more severe COVID-19 outcomes and death.
Fita contended there was no solid medical evidence to back Dlamini-Zuma’s explanation and argued that there was growing proof that the vast majority of South Africa’s estimated 8-11m smokers had not quit. Instead, Fita said, smokers were buying tobacco products from the illicit tobacco industry, costing the SARS an estimated R35m a day in lost excise taxes.
In dismissing Fita’s leave to appeal application, the court reiterated that “it stands to reason that the Minister had to act promptly and swiftly to meet her constitutionally mandated duty to save lives and provide adequate healthcare services”. Requiring the Minister to show that the regulations she promulgated were “strictly necessary” would, according to the High Court, “clearly undermine and derail the Minister’s efforts in honouring the constitutional duties owed to the republic”.Full Business Day report