South Africa’s largest cigarette manufacturer, British American Tobacco (Batsa), says the state's justification for banning the sale of tobacco products during lockdown is an “exercise in smoke and mirrors” that has produced “few benefits and immense harm”. It filed its heads of argument ahead of its challenge of the ban in the Western Cape High Court next month.
The government defeated an earlier court challenge to unban cigarettes from the Fair Trade Independent Tobacco Association (Fita) in June, with the court ruling that it fell within the powers of the state under the Disaster Management Act to ban the sale of tobacco. But Batsa claims to be introducing new legal arguments not heard in the Fita case. A News24 report notes the government has justified the ban by arguing that scientific studies support the view that smoking produces more severe cases of COVID-19.
Given that South Africa has around 11m smokers, this would strain the country's health system. However, Batsa says it will be arguing that Regulation 45 of the lockdown regulations is unconstitutional, as it “violates the rights of every participant in the supply chain for tobacco and vaping products”. Regulation 45 prohibits the sale of tobacco products, except for export. In the Fita case, the group did not argue that the regulation was unconstitutional.
Batsa, however, says that by limiting the right of smokers to buy cigarettes, their right to dignity has been impeded as they have been “denied the right to make their own choices”. “We submit that the infringement of autonomy amounts to a limitation on the right to human dignity in section 10 of the Constitution. The Minister bears the onus of justifying this limitation.”
The tobacco group will also argue that banning cigarettes amounts to an “unjustifiable intrusion by the state into the private sphere,’ and as such limits the constitutional right to privacy. ‘In depriving consumers of the ability to use tobacco and vaping products that they find pleasurable and calming in stressful circumstances, the Minister has infringed their right to personal autonomy and bodily integrity.”
News24 says the group also intends to cast doubt on the core of the state's justification – that smoking causes more severe cases of COVID-19. “The Minister’s concern that the health system … may be overrun if the sale of cigarettes is allowed, is not supported by the experience of other countries,” states an affidavit by a doctor.
It will also argued that Regulation 45 has not been successful in reducing the number of smokers in South Africa, as cigarettes are freely available on the illicit market.
Activist Yusuf Abramjee, founder of Tax Justice SA, has filed an affidavit in the Western Cape High Court in support of a bid by Batsa to overturn the government's four-month-old ban on cigarette sales, says a report on the IoL site.
“For the sake of our future, we must hope that our judges put an end to this hugely damaging and unworkable prohibition,” said Abramjee, whose organisation campaigns against illicit trade and other crimes. He said the case, set down for hearing today and tomorrow, gave the court a choice between protecting the country's honest citizens and their constitutional rights or a government that made arbitrary regulations and criminals coining it in the booming tobacco black market.
“It is a watershed moment when South Africans will be told whether we live in a country where honesty and hard work is rewarded or if crime really does pay. Whether our lawmakers must adhere to the Constitution and common sense, or if dictators lead by decree and personal agendas.”
Abramjee said it was obvious that since late March when tobacco sales were banned under a lockdown in response to the COID-19 pandemic, smokers had continued to smoke and were buying cigarettes “at sky-high prices via sophisticated criminal networks that make R100m every day”.
Hence the case would decide whether criminals continued to get rich or whether almost 300,000 people who worked in or depended on the legal tobacco industry for a living survived, he added. “We’ve lost over R4.5bn already, while children are going hungry. Criminals have made R13bn, while thousands of decent citizens have lost their jobs,” Abramjee said.
Batsa is arguing that the ban is irrational and unconstitutional.
[link url="https://www.news24.com/fin24/economy/south-africa/british-american-tobacco-sa-says-cigarette-ban-an-exercise-in-smoke-and-mirrors-in-court-filing-20200729"]Full News24 report[/link]
[link url="https://legalbrief.co.za/media/filestore/2020/07/BATSA.pdf"]Batsa papers on Legalbrief[/link]