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BAT threatens court action over ban on cigarette sales

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British American Tobacco has given Cooperative Affairs Minister Nkosazana Dlamini-Zuma until Monday to amend the Disaster Management regulations.

BRITISH American Tobacco has given Cooperative Affairs Minister Nkosazana Dlamini-Zuma until 10 am on Monday to amend the Disaster Management regulations relating to the sale of cigarettes and other tobacco products.

In a letter drafted by law firm Webber Wentzel, the company says it will go to court if the regulations are not amended by the given date. 

On Wednesday, two days before the country moved to a slightly less restrictive level 4 lockdown, Dlamini-Zuma shock millions of smokers when she announced that the ban on the sale of tobacco products would remain in place. This was a direct contradiction of President Cyril Ramaphosa’s announcement the previous week that alcohol sales would remain banned but cigarettes will be available under the eased level 4 regulations.

“Having been prohibited from selling tobacco products and vaping products from the commencement of the lockdown, our client commenced preparing for the upliftment of the prohibition. In a very short period of time, over 10 000 orders were received from retailers wishing to sell tobacco products. The upliftment of the prohibition was celebrated not only by our client, but by retailers and consumers throughout the country,” the letter from Webber Wentzel, which IOL has seen, says.

The company says it was “not given the opportunity to comment on the retention of the prohibition”.

Dlamini-Zuma, in her announcement, said that government had heeded the wishes of around 2 000 submissions from the public asking for the ban on cigarettes to remain in place. She also stressed that Covid-19 attacked patients’ respiratory system and therefore smoking could make people more vulnerable.

The minister said that the government had received a total of 70 000 submissions on the regulations.

Webber Wentzel says BAT “has been severely prejudiced by the prohibition on the sale of tobacco and vaping products. This prejudice has been significantly enhanced by the complete about turn made by you regarding the lifting of the prohibition.” 

If the regulations have not been amended by the deadline given by their client, the law firm says BAT will challenge the regulations on the grounds that it: 

* is ultra vires (beyond the legal power or authority of) the Act;

* is unreasonable;

* was included in the Regulations for an ulterior purpose; and

* was re-introduced into the Regulations without following a procedurally fair process. 

On Thursday, Finance Minister Tito Mboweni said that he had been opposed to the retention of the prohibition. Mboweni revealed that the government had already lost R1.5 billion in tax revenue as a direct result of the ban on the sale of alcohol and tobacco products since the start of the lockdown.