Tobacco association brings urgent application to lift cigarette ban

State power has been expanded, but does the degree to which it’s being exercised violate government’s constitutional obligation to behave with legality?
The applicants question how the ban helps stop the spread of Covid-19. If health is the concern, why not ban fizzy drinks and chocolates too? Image: Moneyweb

In the first of what looks like a slew of cases challenging aspects of the Covid-19 lockdown in South Africa, the Fair-Trade Independent Tobacco Association (Fita) is hauling government to court on an urgent basis to have the ban on the sale of cigarettes lifted.

Papers were served on Monday to President Cyril Ramaphosa and Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma.

Normally fratricidal tobacco manufacturers have parked their differences to take on government over what is a business-threatening shutdown. British American Tobacco (BAT) last week sent a letter to Dlamini-Zuma demanding that she lift the ban, failing which it would bring an urgent application before the court.

Fita, of which BAT is not a member, beat it to the punch. It wants the court to lift the ban, and for government to account to all South Africans on how it came to the decision to impose the ban in the first place.

It’s also asking the court for a “declarator” that the export of tobacco products and cigarettes isn’t prohibited, and that cigarette manufacturing can resume.

Fita says the previous Level 5 lockdown did not specifically ban cigarette sales, but that manufacturers and retailers had buckled under threats and contradictory statements from various ministers and law enforcement officials, and had stopped either manufacturing or selling tobacco products.

Ramaphosa announced the lifting of the cigarette ban in April, but this was countermanded by Dlamini-Zuma a week later.

Fita says the ban “directly affects the freedoms previously enjoyed under law by approximately 11 million cigarette smokers and tobacco users in South Africa,” as well as their physical and mental wellbeing.

Tax Justice South Africa estimates that the fiscus has lost about R1.5 billion due to the ban, while fostering a rampant illicit trade in cigarettes.

Cigarettes are reported to be pouring across the borders with relative ease from Zimbabwe and Mozambique.

In a letter attached to the Fita application, Gold Leaf Tobacco CEO Ebrahim Adamjee points out that the company paid R437 million in excise and R60 million in value-added tax (Vat) over April and May 2019.

Two-month loss to SA of R519m from one manufacturer

Because the company has been shut down, the fiscus will lose out on R457 million in excise and R62 million in Vat for the same months in 2020.

Read: Sars should be reminded of its constitutional duty

The company says it is making an operating loss of R801 000 a day, while fumigation and maintenance costs are spiralling due to the lockdown. The company employs 354 workers, not counting its supplier and distribution networks.

“The current status quo will likely result in Gold Leaf Tobacco having to enter a process of liquidation and/or business rescue, placing further strain on these individuals and their families as well as government,” says Adamjee.

State ‘deaf to the voices’ of citizens

Fita chair Sinenhlanhla Mnguni says the ban is irrational and that government has been deaf to the voices of those opposed to it.

A petition to lift the ban had garnered more than 496 000 signatures by late Monday.

In addition, says Fita, there is no evidence that the ban stops the spread of Covid-19. “There has been a clear failure to balance the interests of citizens who are legally entitled to purchase cigarettes and tobacco products with measures that may responsibly and legitimately be taken to combat the pandemic,” says Mnguni in his affidavit.

The Fita case will hopefully shed some light on the limits of state power in emergencies such as Covid-19.

Mnguni says the regulations imposing the cigarette ban are unlawful and invalid, and violate the constitutional obligations on government to behave with legality.

Lift ban – or explain your process

If cigarette sales are not allowed, Fita wants the government to explain how it came to determine its list of “essential goods” that could be sold during the lockdown.

None of the ministers making pronouncements about the ban have demonstrated how it prevents the spread of the virus. Public comments have been limited to smoking as a health hazard, in which government could have used the same rationale to ban fizzy drinks and chocolates.

Consumers’ rights to body and psychological integrity have been infringed, says Fita, including their “right to security in and control over their own bodies”.

Dlamini-Zuma’s imposition of a ban on cigarettes was motivated by “health reasons”.

“’Health reasons’ is not in law a basis for prohibiting the sale of tobacco and cigarettes under the regulations,” says Mnguni’s affidavit. “The [Disaster Management] Act and regulations have a very specific ambit – not delineated by ‘health reasons’.”

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– there is no evidence that smokers are more at risk of being infected with CV19 than non smokers
– more damage is done from sugar ( obesity Diabetes etc) than from smoking
– Tobacco products earn SA more than R2b in tax revenues per annum
– illicit cigarette sales ( providing no tax revenue to SARS) has apparently boomed during this lockdown
– CR’s credibility has been seriously compromised by him having to retract his initial decision to lift the ban on Tobacco products – the effects of this remains to be seen. And just when he had us all on his side.
I rest my case.

Mac,

Weirdly, the opposite applies. There is evidence that smoking REDUCES the covid risks
refer https://www.economist.com/science-and-technology/2020/05/02/smokers-seem-less-likely-than-non-smokers-to-fall-ill-with-covid-19

As to CR, he is either giving that woman rope to hang herself in popularity stakes or he is indeed a castrated lapdog of the Zupta clan. Zapuro could do a great cartoon

Johan, this is true and very interesting indeed. They do not yet understand the mechanism though. I guess it might be due to the fact that nicotine is a stimulant and therefore, has a regulating effect on the bodyfat levels which is metabolically active and secretes hormones that cause inflammation. If that is the case, then Selective Estrogen Receptor Modulators (SERMS) might have a role to play. I saw experimental studies from South Korea on Pubmed that proved that Tamoxifen has a positive effect in drug-resistant TB as well as on pulmonary fibrosis that kills the small minority of covid patients who die from the disease. I put my trust in the wonderful medical professionals to get the cure and to save lives. Maybe the solution is right before our eyes, like a packet of cigarettes.

The government needs to lift the ban ASAP. I don’t care what the ulterior motives were for the ban but the ‘cheapies’ and ‘fake’ cigarettes which are now sold at astronomical prices are actually affecting my health negatively but because I am addicted I have to buy the illegal cigarettes. Who is benefitting from these illegal sales or whose back pockets are being filled? All I say is that I don’t care I just need to buy my normal brand that I’ve been smoking for the past 40 years. I am at no risk for Covid-19 as I am indoors and wear a mask when I need to buy cigarettes. Lift the ban. NDZ justified the ban on a petition of 2000 signatures so we as smokers can give her a petition of ten fold that amount. LIFT THE BAN

As a law student I am glad that this challenge is in the works: executive over-reach seems rife in this period and someone needs to start fighting these sweeping administrative actions.

The Professor ENCA had on their 07H00 news last night said there is NO evidence that smoking has a negative effect on patients with Covid-19

The “collective” is lying.

Tobacco companies being less than honest as usual.
Smoking weakens your respiratory system.
In a time when people are in lockdown, confined to their homes, the damage to childrens health from passive smoking increases.
When people are in survival mode, the tobacco companies want to divert a portion of the limited budgets people have for food and other essentials to the tobacco companies.

Maybe they should have stepped up before this and assisted their customers facing battles with cancer and respiratory diseases.

I think they fear that people might break their habit during this very testing period for our country.

I don’t need you or NDZ or anyone else to tell me to smoke or not. You are not my mother. As long as it is an informed choice by a grown up human being it has nothing to do with you or anyone else. ( I don’t smoke by the way. But all you Mother Grundy’s butt out of my life)

Raait, give us your opinions on sugar etc. as well. And alcohol while you are at it.

Taxi drivers are a bigger threat to life than the virus. So they should be banned then. Nothing wrong with sugar or alcohol. Something wrong with your brain and logic.Most probably lack of red wine.

Another moralist spewing nonsense. This is about civil liberties, not your idea of what is good for your health. If the tobacco companies lose, we should all get out on the first possible plane and ask for asylum in a country were the inmates are not running it.

“Smoking weakens your respiratory system” *and immune system*.

Though a multitude of doctors world wide are surprised that with Covid-19, this hasn’t been the case. They presume that nicotine is binding to the same receptors as the virus and therefore, preventing the virus from binding. This has resulted in smokers being 4-10 times less likely to be infected.

And as everyone has said, sugar is a far greater risk. Sugar causes diseases like heart disease and respitory disease as well as severely lowers your immune system (as does smoking), diabetes, obesity, high blood pressure, hypertension, increases stress, anxiety and depression and causes more cancer than smoking.

Clearly, I’m not debating for the health benefits of smoking (prevention of alzheimers and parkinsons, ADHD, lower obesity rates and a higher survival rate of heart attacks) because there are far more negatives. But this ban infringes on peoples rights, who are going to buy smokes anyway.
What about them banning all sugar and carbs (nobody liked the sugar tax)? Or reducing the speed limits to 10km/h (nobody even liked the idea of freeways being reduced BY 10km/h), or even banning driving altogether, or banning exhaust/factory fumes because people die from pollution? Or banning sex because HIV/AIDS lowers your immune system far more than smoking or sugar? How about banning sports because that causes injuries? What about meat? Coffee increases blood pressure.

And almost everyone says that vaping is far better than smoking cigarettes. Why was that banned? I’m now smoking far more cigarettes.

After all, life also has a 100% mortality rate.

cthru ….now why do I think you are the typical neighborhood “Kill-joy” willing to snitch on all those residing close by

How I hate those types! The busybody who has no life of his own, who feels compelled to build his self-worth by appointing himself as the supreme commander and village chief. He hasn’t got any advice for himself but tells everyone else how to live. The person with the emotional IQ of a rabid porcupine who wants to rule and regulate society. Ask such a person to make a contribution to a charitable project and they only have excuses. They are always too busy to put their advice into action. They complain and point fingers all the time but they contribute nothing substantial.

These are the types of lowlifes who called the police when I exercised alone in my own gym during the lockdown. Lucky for me, when the police arrived I was in the shower already. I came out of the shower and there I was, naked in front of 20 policemen and women. The men laughed and joked jovially and the ladies pulled their masks over their eyes. I respect those officers for their understanding but I hate that pathetic individual who called the police.

🙂 Maybe cos you want to believe the tobacco companies care about you.

That health should not be considered as a reasonable criteria for determining what essentials are in a health crisis.

@ ctrhu I sugggest you change the sequence of the letter in you pseudonymn:
tur… and then combine the c and h to form a d.

It feels weird that as a nation we seem more upset by the alcohol and tobacco ban than marshall law – which a curfew and total armed forces deployment amounts to.

The regulations weren’t designed for us privileged folks in the surburbs. They were designed with the millions living in townships who have always had a problem with authority.

Yes. Those the ANC spent over a century teaching ill-discipline.

Government is the ONLY Non-Essential Business!

FITA is the lap dog of the big tobacco companies – it is an irrelevant entity that was created as a ruse to give the appearance of something but is in effect nothing. Big tobacco is a criminal enterprise siphoning billions through round-tripping and other illegal tricks to evade tax. Government can easily remedy this scourge by putting on traceable bar codes on cigarette boxes to match invoices with product but refuse to do so because of their corrupt relationship. We should have no sympathy for this terrible industry that has killed millions of its customers and ruined the health of so many. Same with the alcohol companies – both are the cause of of so many dread disease and illnesses.

Show us on the doll where the tobacco industry touched you.

Last I saw a pack of fags in SA, they all had a seal stuck on which indicated duty was paid on them. And they have barcodes on them…

I am a 68 Male smoker, non drinker and my wife a I walk a couple of ks 5 times a week since Lv 5 ended. I stocked up with smokes and still okay for the next 3 weeks. Then what? Illegal junk breaking the Law and no revenue to SARS.

No real scientific evidence.

Wake up Cyril or are you Dlamini Zuma’s puppet

WJS

Not a puppet, just scared into paralysis as he has been ever since he became vice-President. If he cares for “my fellow South Africans” he should get out of the kitchen if it is too hot for him.

Its amazing how I see non-smokers discussing how the ban should be extended, as well as tobacco manufacturers protesting the lift of the ban due to profit losses. Yet strangely all smokers are just the children watching their two parents fight over whats best for them, their opinions never asked or considered. The cravings/withdrawal symptoms involved with nicotine addiction is not so easily “given up” as non smokers think. And it seems manufacturers are more concerned about their loss rather than smokers who have no alternative but to pull out over R1000 (in a time with limited financial income) to supplement their addiction. For years smokers have been made to look like the weak, dirty part of society. Yet why has no one criticized all those who are overweight or obese? How about all those on excessive under-the-counter medications? Or the gymers using excess supplements? People operating vehicles under the influence? Dont be so quick to judge, we all have atleast 1 crux in our lives, and dont ban/limit our crux because you detest it. We know smoking is bad for us, we know it may lead to an early death, we know it makes us more vulnerable to covid, but we’re adults, we accept these risks.

And where is BAT on this? webbers wrote a letter to the government with a deadline ..but have the management developed IBS?

The bottomline is that illicit cigarettes have been sold all the time, at 3x & more than the norm. Using health risk was a lame excuse,as DZ is all for it, for obvious reasons. CR looks tired and not well.In the meantime, while she is gathering all kinds of backup to save her, the whole country is in a complete state of chaos.

Who gave the government this kind of power. I KNOW they SAY this is a democracy BUT they are acting as if it is a communistic rule?????

There are many who believe that Dlamini-Zuma is in bed with the illegal ciggie traders. So, good luck to the legal manufacturers who are hoping to cut short her ‘commissions’ from those shady chaps.

The ban on tobacco are but one of the bad decisions since lockdown. I will give government 9/10 for speedy action with regard to lockdown but a 2/10 for execution – police brutality, inconsistent laws (fast food a big no because of to mutch movement but LOTTO just fine – when will there be an forensic audit on LOTTO) payment of social grants (every time a massive b…..p) on something the government are doing every month.
Funds earmarked for the hospitality industry now all of a sudden only if BEE compliant – it needs to be remembered that the relief fund’s are our tax money and paid by all, I can therefore not really understand why a minister must decide on distribution, it is time wasting.

These guys an they cigarettes excuse,is just a load of bull.

They have taken the cigarettes from all the shops ,but they fully aware of what’s happening on the black market.

It’s not like they don’t no ,all this boils down to a money making scheme.

Zimbabwe an Mozambique still bring cigarettes into the country,the black market has every single brand not forgetting the sale of alcohol.

End of comments.

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