The Western Cape High Court will decide "without delay" whether to grant the government leave to appeal its December ruling that found last year’s ban on tobacco sales unconstitutional and invalid, Judge Tandazwa Ndita said after hearing arguments in the matter.
A Mail & Guardian Online report notes that in an hour-long virtual hearing, legal counsel for Co-operative Governance Minister Nkosazana Dlamini-Zuma, the sponsor of the 143-day prohibition, submitted that the court had erred on 12 counts when it found in favour of British American Tobacco SA (Batsa).
Much of the argument as to the merit of the application turns on the fact that two different High Court divisions have reached different conclusions on the validity of the restriction.
The 11 December ruling in the Western Cape came four months after the ban was lifted and six months after the rival Fair Trade Independent Tobacco Association (Fita) unsuccessfully challenged the measure in the Gauteng High Court (Pretoria). The court found that the Minister had exceeded her powers, in part because she failed to prove that it was necessary to achieve her aim of reducing the burden on the health system.
In the Fita ruling on 26 June, the Gauteng High Court had favoured the Minister with a broad interpretation of the necessity test in section 27 (2) (n) of the Disaster Management Act, finding that the ban was a rational measure, imposed at a time of crisis and that therefore she had cleared this threshold.
Advocate Marumo Moerane, for Dlamini-Zuma, argued that the earlier ruling was correct and that the Cape division was bound to it by precedent.
[link url="https://mg.co.za/news/2021-02-16-tobacco-industry-argues-dlamini-zumas-bid-to-appeal-adverse-ruling-on-the-ban-is-fatally-flawed/"]Full Mail & Guardian Online report (Open access)[/link]
See also MedicalBrief archives:
[link url="https://www.medicalbrief.co.za/archives/government-and-batsa-clash-again-in-appeals-and-counter-appeals-over-tobacco-ban/"]Government and Batsa clash again in appeals and counter-appeals over tobacco ban[/link]
[link url="https://www.medicalbrief.co.za/archives/dlamini-zumas-appeal-against-tobacco-ban-to-be-heard-online/"]Dlamini-Zuma’s appeal against tobacco ban to be heard online[/link]
[link url="https://www.medicalbrief.co.za/archives/fita-goes-ahead-with-tobacco-appeal-despite-unbanning/"]Fita goes ahead with tobacco appeal despite unbanning[/link]
[link url="https://www.medicalbrief.co.za/archives/dlamini-zuma-studies-show-tobacco-linked-to-more-severe-covid-19-infections/"]Dlamini-Zuma: Studies show tobacco linked to more severe COVID-19 infections[/link]
[link url="https://www.medicalbrief.co.za/archives/tobacco-giant-challenges-governments-covid-19-strategy/"]Tobacco giant challenges government’s Covid-19 strategy[/link]