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.
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.”
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.
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”.
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.
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.