In what might be the biggest court battle between the government and corporate South Africa amid the pandemic, the Fair Trade Independent Tobacco Association (Fita) argued before three judges in the Pretoria High Court on Wednesday that the ban on tobacco sales is unjustified and without reasonable evidence stopped people from smoking.
Fita represents the entire value chain for tobacco and vaping products including the agricultural, manufacturing, retail and consumer sectors.
Fita’s legal representative, Advocate Arnold Subel, put it to the court that tobacco products provide relevant consumers with the same effect and pleasure as coffee, as consumed by people daily, which is why it should have been included under essential products.
“Many users develop routines and rituals associated with the use of these goods that are highly significant to the users and provide comfort and enjoyment; people make use of these goods because they find them pleasurable and useful,” he said.
“Nicotine is one of the major chemical components in tobacco and vaping products, while caffeine is one of the major chemical components in coffee,” said Subel, adding that nicotine and caffeine are both plant alkaloids that act on the central nervous system.
He said they are both stimulants, with nicotine producing a calming effect. This is why tobacco and vaping products and caffeine are “significant to the users” and provide them with comfort and enjoyment to help them cope in stressful circumstances.
Subel explained that the denial of access to tobacco and vaping products is detrimental to the emotional wellbeing of regular users and can be expected to result in “increasing restlessness, irritability, anger, stress and unhappiness”.
“Many consumers use tobacco and vaping products for pleasure to manage or relieve stress during their daily lives.”
Subel strengthened his case by saying it was unrealistic for the government – referring to Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s public announcement – to justify the cigarette ban by saying that people would stop smoking.
“It might, in her world, be an answer to stop people smoking – but that is in a make-believe world,” he said.
“To imagine in the real world that you are going to stop people smoking through this ban is entirely far-fetched. The golden thread here is an incontrovertible fact that banning is not going to stop the supply.”
Subel argued that the ban on the sale of cigarettes has had a negative impact on the “poorest of the poor” as they have to buy cigarettes at black market prices.
However, state lawyer Advocate Marumo Moerane argued that the ban has been successful in both reducing access to cigarettes and in getting smokers to quit.
According to Subel, fewer than 2 000 people were in favour of the ban remaining in force, while more than 600 000 people had signed a petition in favour of the sale of cigarettes.
Impact on employment
Subel said the prohibition of the sale of tobacco and vaping products has had a massive impact on all participants in the supply chain.
“While the tobacco farmers are permitted by the regulations to harvest and store their crops, they are unable to find local buyers for those crops while the prohibition on the sale of tobacco products remains in place,” Subel said.
He said 90% of their produce is sold locally and that there are more than 200 commercial farmers and over 150 emerging farmers producing tobacco in South Africa.
These farmers provide jobs to approximately 8 000 people supporting more than 30 000 dependants, primarily in rural areas where employment opportunities are limited.
“This jeopardises the ability for these farmers to provide for [their] workers,” Subel said.
Judge President Dunstan Mlambo said he would advise the parties when the judgment is ready. While the matter was heard in open court, the judgment will be handed over in a private sitting.