The Supreme Court of Appeal (SCA), in a judgment handed down on 14 June, found that Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma acted unconstitutionally in banning the sale of tobacco products during the Covid-19 lockdown.
The minister had appealed the December 2020 high court ruling that the tobacco ban was unconstitutional and invalid. The respondents in the action were British American Tobacco South Africa (Batsa), plus “farmers, processors, manufacturers, retailers and consumers, situated at every level of the supply chain for tobacco and vaping products”.
The SCA awarded costs against her, including the costs of the expert witnesses led by Batsa.
The respondents launched an urgent application to the high court in June 2020 for an order declaring that Regulation 45, which provided for the ban on the sale of tobacco products during the Covid-19 lockdown, was unconstitutional and invalid.
The respondents argued that Regulation 45 “constituted an infringement of the fundamental rights to dignity, privacy, bodily and psychological integrity, freedom of trade, and property”.
The high court made an order declaring Regulation 45 inconsistent with the Constitution and invalid, that Regulation 45 did not reduce the strain on the health system, and directed each party to pay its own costs.
The minister then appealed.
The basic facts
Batsa did not challenge the initial prohibition on the sale of tobacco under lockdown, until it became clear that the government intended to continue enforcing the ban.
The SCA noted that the prohibition on the sale of tobacco products “had an adverse effect on some 11 million users of tobacco and vaping products in South Africa”, whether smoking for pleasure or to alleviate stress.
The fiscus was negatively impacted by the loss of excise duties payable by manufacturers of tobacco products – “approximately R2.4 billion in taxes was lost during the first eight weeks of the lockdown”.
The loss of revenue was experienced by all players in the tobacco value chain. Illegal cigarette sales soared.
The SCA referred to a research paper published in May 2020, termed the Walbeek Report, which found that smokers turned to illegal cigarettes, only 16% of those surveyed quit smoking during lockdown, and the prohibition “impacted adversely on their well-being”.
The minister’s case on justification
The minister justified the tobacco ban as follows:
- The overarching reasons for prohibiting the sale of tobacco and vaping products were to protect human life and health, and reduce the potential strain on the health system.
- The use of tobacco products increased behavioural risks associated with the transmission of Covid-19.
- Smokers have higher intensive care unit (ICU) admission rates, a higher need for ventilators, and a higher mortality rate than non-smokers.
However, the SCA found:
- The minister’s justification for the prohibition was not supported by the World Health Organisation (WHO).
- The minister had not provided evidence that smokers are more likely to develop severe disease with Covid-19 compared to non-smokers.
- The minister’s expert, Professor Leslie London, a Professor of Public Health and Family Medicine at the University of Cape Town, conceded that the findings in the literature on the risk of infection or hospitalisation for Covid-19 are mixed. London also conceded that there is no scientific data to show that quitting smoking will reduce disease severity in relation to Covid-19.
- There was no scientific justification for the continued ban on the sale of tobacco products, and there is no evidence that short-term quitting of smoking has clinical significance for Covid-19 severity and outcomes.
- The minister did not show that the temporary ban on smoking would have lessened or reversed Covid-19 disease progression.
- Regulation 45 did not reduce the incidence of smoking.
- The minister did not discharge the onus of showing that the infringement of fundamental rights was justified.
- The view of the respondents’ expert, Dr Jaymin Morjaria, a consultant physician in respiratory medicine, that the scientific evidence on the question whether smoking increases Covid-19 disease progression is “mixed and inconclusive” is sound.
The right of freedom of trade
On the constitutional right of freedom of trade, the SCA found that:
- The tobacco ban unjustifiably limited the right to freedom of trade.
- Tobacco farmers were unable to sell harvested tobacco crops, and were forced to continue operations without any income or cash flow from the rest of the tobacco value chain. This was aggravated by the fact that tobacco farmers were excluded from the R1.2 billion disaster relief fund intervention.
- Batsa lost revenue of approximately R322 million per week. Its total loss of revenue exceeded R2 billion in the nine-week period from the commencement of the lockdown.
- The tobacco ban was also an unjustified limitation of the right to property, in that it substantially interfered with the right to use or exploit property.
- There was a lack of factual and scientific evidence to support the promulgation of Regulation 45. The limitation of rights was disproportionate to the nature and importance of the rights infringed, which are foundational to a democracy.
- The minister was not able to provide evidence to show that stopping smoking during the tobacco ban would have reversed or reduced the risk of contracting a severe form of Covid-19.
Not only has the fiscus been deprived of the excise taxes and the taxes on taxable income during the tobacco ban, but it will now have to pick up all these legal costs.
Ultimately, the taxpayers bear the burden.
Barbara Curson holds shares in Batsa.
Curson visited the British American Tobacco Kenya tobacco plant in 2019, at its cost, to observe the workings of the ‘track and trace’ system for tobacco products.