Tue, 29 Sep 2020

The Fair Trade Independent Tobacco Association (Fita) has been granted leave to appeal the high court's ruling in favour of government's cigarette and tobacco products ban.

The Supreme Court of Appeals (SCA) issued a directive earlier this week and respondents, President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, have until Friday to submit a responding affidavit.

Fita chairperson Sinenhlanhla Mnguni told City Press that this was a boost for the cigarette lobby.

"We are pleased by the directive issued by the SCA [on Tuesday]. We have always looked at the matter long-term and we have always seen it going the full distance. We were given a confidence boost by the decision yesterday because it reflected that the SCA accepts the urgency of this matter," he said.

The trading of cigarettes and other tobacco products has been prohibited since the nationwide lockdown was introduced in March, resulting in major losses for the industry.

Government then made an announcement that tobacco products would be allowed under level 3, but quickly made a U-turn which led to Fita's decision to take legal action.

Fita's legal representative, advocate Arnold Subel, argued that it was in the public's best interest and the law to have the high court's decision tested.

Subel explained that "bans [of tobacco products and alcohol] do not work".

Fita believes that government's premise for banning cigarettes was that lack of access to tobacco products would force smokers to quit smoking, and says this should have been highlighted in the judgment.

"Government is saying that people must get over [smoking]. It is callous to say that to people who are addicted to tobacco," Subel said.

Addressing the issue of the illicit trade in tobacco products, Moerane said the court was correct in finding that the fact that not all smokers had quit was not enough evidence to render the decision to ban the sale of tobacco products irrational or unnecessary.

He suggested that it was irresponsible for government to take this stance when there were no programmes in place to help addicts suffering from withdrawal symptoms.

Subel said the high court judgment was incorrect in ruling that government's decision to ban the sale of cigarettes and other tobacco products was rational under section 27 of the Disaster Management Act.

He added that the medical literature and research relied on by Dlamini-Zuma did not necessarily encourage a ban of tobacco products.

On the trade of illicit cigarettes, Subel said that while the court correctly found that illegal trade was a problem, it failed to recognise that "this reality is destructive of the rationality of the ban in circumstances in which smokers are still able to secure the ongoing supply of cigarettes and tobacco products".

Advocate Marumo Moerane, representing Ramaphosa and Dlamini-Zuma, said no other court would come to a different finding to that of the Pretoria High Court.

He pleaded for Fita's leave to appeal to be rejected.

Moerane argued that Fita's attempts to find fault in the medical evidence had failed to show how another court would come up with a different decision.

He said measures aimed at reducing the strain on the country's healthcare system must be considered as necessary.

Addressing the issue of the illicit trade in tobacco products, Moerane said the court was correct in finding that the fact that not all smokers had quit was not enough evidence to render the decision to ban the sale of tobacco products irrational or unnecessary.

On Subel's argument regarding the criminalisation of a legal product, Moerane said this did not stand as it ignored the fact that the regulations were passed by provisions set in the Disaster Management Act.

In June, the Pretoria High Court dismissed Fita's application to have government's ban on the sale of tobacco products overturned.

Queenin Masuabi

Political Journalist

+27 11 713 9001Queenin.Masuabi@citypress.co.zawww.citypress.co.za69 Kingsway Rd, Auckland Park

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