The government is appealing the Western Cape High Court judgment that the ban on the trade of tobacco products during the hard lockdown was unnecessary. But British American Tobacco SA (Batsa) immediately launched a counter appeal (see report below) as the 'tobacco wars' issue intensified.
TimesLIVE reports that the original case was brought by tobacco traders, including Batsa, after the sale of tobacco products were banned during the hard lockdown. The sale of such products was allowed again only in mid-August when the country moved to level two of the lockdown.
The case was heard in August after the restrictions on the sale of tobacco products was lifted, and judgment was delivered in December. The court found that Regulation 45 – which Minister Nkosazana Dlamini-Zuma used to effect the ban – could not stand up to constitutional scrutiny, was unnecessary and would not serve objectives set out in section 27 of the Disaster Management Act.
The court also found Regulation 45 limited the smokers' and vapers' rights to human dignity because it denied them the choice of buying tobacco products and in so doing affected their autonomy to choose whether to consume such products.
Among 13 grounds listed in support of the appeal, President Cyril Ramaphosa and Dlamini-Zuma argue the court “was not consistent in its approach to expert evidence”.
They also argue that the court should have held the Minister's prohibition of the sale of tobacco products was to reduce the incidence of smoking and the risks posed by COVID-19 to smokers and to those exposed to cigarette smoke.
According to another TimesLIVE report, they said the court should have held that the aim of the prohibition was to free up scarce healthcare resources needed to respond to severe cases of COVID-19. They said the court should have held the prohibition was to protect human life and health, and to reduce potential strain on the healthcare system, particularly given the predicted steep rise in the rate of infections following the lifting of level four restrictions on work and the movement of people necessary to restart the economy.
They argue the exercise of the Minister's powers to make regulations was not susceptible to judicial review on the ground of irrationality unless there was no rational link between the chosen means and the objective for which the power was conferred.
“All a court has to determine is whether a rational connection between a legitimate government purpose (saving lives and health and preventing overwhelming the country's healthcare facilities) and the means (banning the sale of tobacco and vaping products) exists.”
Batsa's counter move comes amid industry fears that Dlamini-Zuma is pushing to revive the contentious prohibition. “The application for leave to cross-appeal is conditional upon the first and second respondents’ application for leave to appeal being granted,” Batsa says in its notice to the court.
It plans to withdraw the application, should the government do the same, notes a Mail & Guardian report. If not, it will challenge the court’s finding that each party pays its own costs. In this regard, Batsa argues that the court erred in not awarding a cost order against the government because the ban had already been lifted by the time the ruling was handed down.
Legal precedent would have it that when a private entity succeeds in constitutional litigation against the state, its costs should be paid by the state, Batsa argues in its application. Secondly, it will question the court’s finding in the Minister’s favour that she had not acted ultra vires by imposing restrictions on the tobacco industry in terms of the Disaster Management Act.
Batsa had argued that because the law expressly grants the minister the power to impose restrictions on the alcohol trade but was silent on other goods, the maxim inclusio unis est exclusio alterius should apply and preclude her from making regulations about tobacco. The full Bench found that this guideline “did not per se exclude the Minister’s authority to make provision 45”, which imposed the ban.
The High Court decision has been questioned by one legal expert. The judgment is slammed as being “larded with nonsense” by Ziyad Motala, professor of law at Howard Law School, in a scathing assessment on the IoL site.
Highlighting a long list of faults with the judgment, he says “the decision represents a brazen overreach by the judiciary and an extreme vision of individual autonomy, found in an infamous case called Lochner”.
He writes: “The Lochner decision is often proclaimed as the most condemned case signifying judicial dereliction and expressing an extreme vision of individual autonomy and property. The Western Cape judges gave expression to that discredited vision.”
He adds: “Let us hope the triumphalist chest thumping by the tobacco interests is premature and will be set straight by an appellate tribunal.”
Full TimesLIVE report
Full TimesLIVE report
Full Mail & Guardian report
Full Weekend Argus report