The Supreme Court of Appeal (SCA) has dismissed an appeal by the Co-operative Governance and Traditional Affairs Minister against a High Court ruling that the regulation banning the sale of tobacco products during the COVID-19 lockdown was invalid.
Dr Nkosazana Dlamini-Zuma was on Tuesday ordered to pay her own costs in the matter.
The SCA dismissed Dlamini-Zuma's appeal against the 20 December Western Cape High Court judgment, and also upheld a cross-appeal by farmers, tobacco processors, manufacturers, retailers and consumers, ordering her to pay her costs, reports TimesLIVE.
The minister had initiated various regulations to contain the spread of COVID-19 in March 2020, including banning the sale of tobacco products, e-cigarettes and related products.
According to The Citizen, defending her decision, Dlamini-Zuma said the ban was to protect human life and health, and reduce the potential strain on the health system, particularly given the then-predicted steep rise in the rate of infections after the lifting of the level four restrictions on work and the movement of people necessary to re-start the economy.
“The use of tobacco products increased behavioural risks associated with the transmission of COVID-19, as some smokers share lit cigarettes,” she had argued.
“Emerging research on the relationship between smoking tobacco products and the coronavirus showed that the severity of COVID-19 outcomes is greater in smokers than non-smokers. Smokers have higher intensive care unit admission rates, a higher need for ventilators and a higher mortality rate than non-smokers. Smoking thus increases the strain on the country’s health care resources, including health workers.”
In June 2020, British American Tobacco (BAT), JT International SA and consumers launched a court application seeking an order declaring regulation 45, which banned the sale of tobacco products, unconstitutional and invalid. The matter was heard in August 2020 and judgment reserved.
Later that month, the minister lifted the ban, but despite this, the court passed judgment in December 2020 declaring the regulation invalid and inconsistent with the Constitution. Each party was ordered to pay its own costs.
While the minister appealed against the order, BAT and others cross-appealed against the order on costs.
TimesLIVE reports that in its judgment on Tuesday, the SCA said assuming there was a causal link between smoking and the risk of contracting a more severe form of COVID-19, the minister would have had to show that stopping smoking during the tobacco ban would have reversed or reduced the risk of contracting a severe form of COVID-19. This had not been established as evidence.
As regulation 45 was not necessary to achieve any of the purposes listed in section 27 of the Disaster Management Act, it was invalid. On the issue of costs, the SCA said the tobacco respondents had raised constitutional issues and been substantially successful.
In this case, the Biowatch principle was applicable: in constitutional litigation between a private party and the state the general rule is that the private party should have its costs paid by the state and if unsuccessful, each party pays its own costs.
The Citizen article – Zuma’s appeal on ‘unlawful’ tobacco ban during lockdown (Open access)
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