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Tobacco ban unconstitutional and invalid

You have the right to regulate your own affairs, even to your detriment.
The court said people in SA have the right to live according to reasons and motives that are ‘not the product of manipulative external forces’. Image: Shutterstock

The full bench of the Western Cape Division of the High Court on Friday (December 11) published its judgment on the controversial tobacco ban matter that was heard in August.

The court trounced the arguments put forward by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, and declared Regulation 45 promulgated under the Disaster Management Act, under which the prohibition was put in place, to be unconstitutional and invalid.

It is scant comfort that the judiciary is the prime defender and enforcer of the Constitution of the Republic of South Africa when it takes this long to obtain a court judgment.

Further, the minister should surely have studied the constitution and obtained relevant scientific evidence to support her actions before she implemented them.

Read: SA tobacco ban revives minister’s two-decade crusade

When the minister announced an indefinite ban on the sale of tobacco products on April 29, British American Tobacco South Africa (Batsa) requested urgent clarity on her decision-making process by May 4, failing which Batsa would bring an urgent court application.

In a Moneyweb article published on May 2, Batsa questions indefinite tobacco ban, the tobacco giant stated that “there is no evidence that connects smoking with an increased chance of contracting Covid-19”. The author remarked that: “The government’s credibility may rest on the peer-reviewed scientific data backing this up being made publicly available.”

Urgency

Batsa brought an urgent application to have the ban on the sale of tobacco products set aside.

President Cyril Ramaphosa and Dlamini-Zuma delayed this court action for some six weeks because of “scheduling complications”.

In a Moneyweb article published on June 29, Government chokes on Batsa’s urgent court application, the author commented that “perhaps the president and the minister lost their eagerness to be heard in court when they received Batsa’s replying affidavit and realised what they were up against”.

The government lifted the ban before the matter had been heard in court, but Batsa decided to proceed with the court action. After all, there was no assurance that the government wouldn’t reintroduce the ban at a later stage of the pandemic.

The applicants in the court matter cover the entire value chain for tobacco and vaping products, including agricultural, manufacturing, retail and consumer sectors.

The application was also made in the interests of a group of persons who are not in a position to litigate in their own interests (per Section 38(c) of the Constitution), as well as in the public interest (per Section 38(e) of the Constitution).

The respondents comprised Dlamini-Zuma, the President of South Africa, and the National Coronavirus Command Council. 

Fita judgment

The respondents argued that the court was bound by the Fair-Trade Independent Tobacco Association (Fita) decision, unless it was found to be “substantially erroneous.” This was in reference to a high court ruling in June that an application filed by Fita – which was based on the fact that the products in question are necessary and essential goods – did not hold ground and dismissed the matter.

The court however found that “there was no constitutional attack on Regulation 45 in the Fita case and that judgment accordingly does not provide authority on the constitutional issues raised before us”.

Constitutional challenge to Regulation 45

The court noted that the constitution has a general limitation clause that provides for rights to be restricted when it is “reasonable and justifiable in an open and democratic country based on dignity, freedom and equality”.

Read: Consumer criminalisation could encourage a culture of tax avoidance

Right to dignity

The constitution provides that everybody has a right to dignity.

The court agreed “… that individual autonomy refers to the capacity to be one’s own person, to live one’s life, lawfully, according to reasons and motives that are one’s own and not the product of manipulative external forces.”

The effect of Regulation 45 impacted on one’s right to “choose whether or not to consume tobacco, vaping or related products”.

Deprivation of property

The court was satisfied that it was demonstrated that the rights across the value chain were substantially affected: “Tobacco farmers are threatened with the loss of their businesses, their livelihoods, tobacco processors have had to put their businesses on hold, thousands of jobs are at risk across the value chain.”

The court found that:

  • It had not been demonstrated by the minister that health care would not be able to deal with the anticipated number of smokers in ICU beds.
  • The evidence of the respondents’ expert, Dr Catherine Egbe, was unscientific. Dr Egbe, who is a doctor of psychology and is not a medical doctor, was of the view that ceasing to smoke during the lockdown “will have beneficial effects for smokers and non-smokers exposed to second smoke if they contract the disease, as this will give their lungs a fighting chance”.
  • There was no evidence to show that stopping smoking would rectify and adjust the anticipated Covid-related health risks on which the minister relied.
  • The minister’s argument was far from convincing, and that the ban on smoking would not reduce the incidence of smoking.
  • The limit imposed by Regulation 45 results in more harm than against the purpose for which it was created. “It follows that the prohibition brought about a significant limitation on the use, enjoyment and exploitation of these persons’ property.”
  • Regulation 45 cannot and does not withstand constitutional scrutiny, it is neither necessary nor does it further the objectives set out in Section 27(2)(n) of the Disaster Management Act.

Each party has to pay its own costs as the respondents “were under both a constitutional and moral obligation to act swiftly at a time when very little was known about the Covid-19 pandemic and the scientific knowledge thereof was scant and constantly developing”.

The judgment is important in the development of South Africa’s constitutional law. The sad reality is that the total loss of revenue of all the parties involved in the tobacco industry (farmers, manufacturers, wholesalers, suppliers, commission earners, employees), and hence the loss in tax revenue, is incalculable.

Read: How tobacco crops can help combat Covid-19

Vindication

Batsa said in a statement on Saturday that it has been vindicated in its view that the disastrous ban on tobacco sales was unjustified and unconstitutional.

“The five-month ban on tobacco and vapour products sales was ill-considered, unlawful and has worsened the illicit trade in cigarettes and vapour products in the country. South Africa has the largest illicit tobacco market in the world.

“Batsa renews its call for South Africa to urgently ratify the World Health Organization (WHO) Illicit Trade Protocol in order to eradicate the illegal sale of cigarettes.

“This is the only way for the country to claw back tax losses resulting from the explosion in illicit trade that occurred during the ban on tobacco and vapour products.”

Barbara Curson holds shares in Batsa.

Barbara Curson visited the British American Tobacco Kenya tobacco plant in 2019, at their cost, to observe the workings of the ‘track and trace’ system for tobacco products.

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COMMENTS   30

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Had to clear the illegal stock first before we could allow the court to mess up the business…

Unfortunately its a case of justice delayed justice denied.

The thing is that the ANC and its Cartel know the ship is sinking fast, they are all trying to get the last few bucks whilst they still can. Last are being made to punish those who abide by them not the criminals who workout side the system.

I say that prior to any government intervention or decision is made, the courts must be first approached. This will prevent the catastrophe consequences before it even occurs.

This just highlights how absolutely stupid this whole lot are. Right from the top to the bottom.

Our beloved chief justice also has a part to play. HIS judiciary takes months or years with anything related to this stupid lot. Its not right. NO MATTER WHAT THE LAW SAYS!!

Smokers should get a class action going and take this lot to the cleaners!!

As for the “woman” with the doek?? I cant say what I want as it would not be allowed.

“Command council” Whahahaaa!!! More like a collective of idiots!!!

Comment removed

No leaders of real quality in ANC

…..love or hate him Tito Mboweni genuinely wants South Africa back on “even keel”

If he had full support From the ANC he would put South Africa back on even keel

He deserves support vocally for the unenviable responsibility he is tasked with

This is good. So what happens to dlamini zuma? Does she pay a fine? Slap on the wrist?

Nothing…………………..

And so will the clown that runs the Eastern Cape’s decision to close the beaches be ruled unconstitutional and invalid and unreasonable and plain stupid, like most decisions made by this lot.

I suppose today the spokesman will tell us it was taken out of context.

Ways to slow the virus. Close shabeens, NO gatherings, (IE no bending the rules for ANC funerals, and taxis to run at 50%, enforce masks and distancing.

interesting during lockdown at a stage the taxis were allowed to operate but with open windows (to blow the virus out)!!!Now you cant swim in the sea where the saltwater and wind will take care of the virus

I also think that the Matriculants that are hell bent on their year end Raves should also reconsider as they are super-spreaders.
There was 1,300 at the Joburg Rave alone – and the Ravers stated that because the Govt did not specifically BAN the Raves then it is OK to go.

Gill. You refer to raves as being “super-spreader” events. Since comorbidities are the biggest risk factor for covid deaths by far, and that comorbidities are mostly the consequence of the metabolic syndrome, then it is clear that the most dangerous activity, the one activity that increases your risk to die of covid more than tenfold, is that activity that causes the metabolic syndrome. Now, from this undeniable reality, we can come to the logical conclusion that eating a koeksister on your own, while watching 7 de laan on the TV, in self-isolation, is by far the biggest super-spreader invent possible.

She’ll ignore the judgement and implement another ban just to show that she’s powerful.

put all her kopdoeke on auction, not for the money but to get rid of all that garra under the doek that infiltrates her “brain”

Does this court ruling now pave the way for the tobacco industry to sue the SA government for loss of income due to unlawful actions instituted?

Maybe but they will Zuma it for 15 years.

That is the new subject for 101 LLB. To Zuma. Means to duck and dive for years, thereby making lawyers on both sides filthy rich.

We have to reject with contempt these idealistic concepts, rules and regulations and we have to embrace the pragmatic approach. Humankind has regressed to mimic a mob of sheep where the ewes follow the ignorant lambs. Idealism rules the day. Uninformed and fearful people welcome oppression and irrational regulations from opportunistic and shortsighted politicians. Groups of idealistic people behave like lemmings and mindlessly follow each other over the cliff into the abyss.

We need more pragmatism. If any rule or regulation is unsustainable over the longer term, it should not be implemented over the short term. There is never a “new normal”. Homo Erectus has developed certain behaviour patterns over hundreds of thousands of years, while being exposed to millions of viruses, without any disruptions to the way society behaves. The only “new normal” is the mass insanity that results from the destructive collectivist narrative in the popular media.

“Pragmatism is a philosophical movement that includes those who claim that an ideology or proposition is true if it works satisfactorily, that the meaning of a proposition is to be found in the practical consequences of accepting it, and that unpractical ideas are to be rejected.”

You da man Sensei, you are very observant of where we find ourselves today. The virus will come and go (as has many bad virusses before it), but it has clearly demonstrated the global progression of ideological insanity that has become accepted as ‘normal’ by the fearful sheep. Unfortunally the sheep are the majority, leading their elected politicians through social media.

So what is the legal recourse for someone usurping their power and causing SERIOUS DAMAGE TO THIS COUNTRY ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Nothing ! It’s a Zuma

How does the minster like her eggs on face? Scrambled or fried 😉

Unfortunately for the rest of us….When your immediate/extended family reap 10’s of millions from illicit cigarettes.. Who gives a 1 how the eggs are cooked..!!

Kopdoek is to thick skinned to understand the Court’s decision,
She and her comrades are enjoying the show, After all it’s only tax payers money.
I see a major case coming up soon.

Vindication means squat

its too late, boss

damage is done and irreversible..

Thank you for the great summary of the judgment.
One would expect Government to have an in-house advisor on the Constitution, since the Constitution is there to protect citizens from Government stupidity, among other things. And surely, in cases of Government trampling on citizen’s rights, it should take less than five months for the Court to make a ruling?

You would have thought Ramaphosa could be that inhouse advisor. After all he was PERSONALLY involved in writing the constitution. Remember??

Yet he was the “supervisor” of the “….”(please fill in something nice) That caused the problem and on more than one occasion she had her way with him!!!

Heish!!!! Now tonight you have to listen to the same people and they are going to tell us what they will force us to do.

Now keep in mind this is a “regime” that has just been told by the high court that they broke the law. When you break the law it is a criminal act.

So are we honestly supposed to listen and respect criminals?????

Well that’s how it works in the ANC. Surprise. Surprise.

irrelevant in reality as nw in Zuma trained ANC Fashion it work its way through every court n the land until the Apex court , which will take years .
Im not sure why dont have ONLY a Constitutional Court to get some action although its Leader also appears to have lost his marbles !!!

The key takeaway is to understand what the unwritten rules are that govern this society as the written ones by now are seen by most to be inconsequential.

I loved this article. So concisely written that a layman like me could understand what really happened. I was disappointed when I read each party had to pay their own legal cost. The legal cost should have been paid by CR and DZ and not the taxpayers’ money as they only wasted the courts’ time.

I think the cost order is because of the novelty of the finding.

But what it means is the next court case about anything similar will be awarded with costs.

Prediction : kopdoek appeals. Then the cost order will be different, and hopefully a personal order.

End of comments.

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