South Africa’s government is appealing a court ruling that last year’s ban on the sale of tobacco products was unconstitutional, an indication that stricter measures to contain the coronavirus may be under consideration.
Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has filed papers with the Supreme Court of Appeal on a non-urgent basis, her spokesman said in a phone message on Tuesday. The move follows a toughening of lockdown restrictions last week to help ease a resurgence in Covid-19 infections, which have led to a sharp increase in hospitalisations and deaths.
The decision is “worrisome” in that it suggests a prohibition that lasted almost five months in 2020 may be reimposed, the Fair Trade Independent Tobacco Association said in a statement. British American Tobacco, which won the ruling by the Western Cape High Court in December, declined to comment.
The ban emerged as one of the more controversial aspects of South Africa’s lockdown policy, which has been in place at various levels of severity since late March. While Dlamini-Zuma argued that it eased the burden on hospitals and reduced the prospect of contagion from cigarette sharing, critics highlighted an explosion in black-market sales and a slump in tax revenue for the National Treasury.
The appeal doesn’t yet affect the ruling that the ban was unconstitutional, according to Gugulethu Samkange, an advocate in the High Court.
“Government would have to bring a new court application to ban tobacco sales if they decide it is necessary,” she said. “However, that application would have to have facts saying that the situation had changed.”
South African President Cyril Ramaphosa is battling to contain the latest surge of the pandemic, and last week imposed a 9 pm curfew and banned the sale of alcohol for a third time. The current measures are scheduled to be reviewed on January 15, though the next meeting of the National Coronavirus Command Council — which agrees the appropriate pandemic response — is set to meet on Wednesday.
Dlamini-Zuma agreed in August to hold a public participation process should she decide to reinstate a ban on tobacco sales, part of a settlement of a separate lawsuit brought by FITA. As health minister under former President Nelson Mandela, she spearheaded legislation that banned smoking in public places and prohibited all forms of tobacco advertising in the 1990s.
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