The Batsa challenge – unlike the one mounted by Fita which the high court dismissed – challenges the constitutionality of the ban. But a finding that the ban was rational effectively dooms any argument of unconstitutionality.
THE GOVERNMENT has taken British American Tobacco South Africa (Batsa) to task for accusing it of being responsible for the lengthy delay in the hearing of its “urgent” challenge to the ban on the sales of tobacco products during Level 3.
“Government does not have control over the scheduling of court hearings and it did not attempt to exercise any such control in this case,” it said in a statement on Friday.
This came on a day when tobacco industry insiders were stunned by the double blow from separate divisions of the high court.
First, the Western Cape High Court had delayed the hearing of the challenge to the ban brought by Batsa from June 30 to August 5 and 6. Then, hours later, the North Gauteng High Court dismissed the legal challenge by the Fair-Trade Independent Tobacco Association (Fita) with costs.
Batsa described the decision, which followed presentations by the State to Western Cape Judge President John Hlophe, as troubling.
“Thousands of jobs stand to be lost in the economy as criminality becomes the new normal. We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard next Tuesday,” said Batsa’s Johnny Moloto.
“Postponing a case that has been agreed, by both sides, to be urgent is something that we believe is unprecedented and is very worrying.”
In a 39-page ruling signed by Judge President Dunstan Mlambo, the North Gauteng High Court found in favour of almost every argument advanced by Cooperative Governance Minister Nkosazana Dlamini-Zuma in defence of the three-month-old tobacco ban.
It dismissed the main contention by the tobacco association that she had acted irrationally in prohibiting the sale of cigarettes in regulations governing the state of disaster declared in response to the Covid-19 health crisis, terming the ban properly considered.
The judges pointed out that rationality was not a stringent test, nor was it the same as reasonableness.
“This in our view is a properly considered rational decision intended to assist the state in complying with its responsibilities of protecting lives and thus curbing the spread of the Covid-19 virus and preventing a strain on the country’s health care facilities.”
They agreed with Dlamini-Zuma that the test for her decision was that it was procedurally rational and not that it was fair.
“The requirement of rationality is thus not a particularly stringent test and should also not be conflated with the requirement of reasonableness, even in those cases in which a law or the exercise of a public power infringes a fundamental right.”
The judges dismissed the argument advanced by senior counsel for Fita that evidence that the ban had not led to widespread smoking cessation, robbed the measure of a causal link to the stated aim of preventing health services from being overwhelmed by smokers with severe coronavirus symptoms.
Advocate Arnold Subel had told the court that the minister could not show that the ban had achieved the desired effect of preventing people from smoking. Therefore, he argued, the rationale for the ban as reducing the strain on health facilities became untenable.
“There must be a provable reduction on smoking that will achieve the effect the minister wants to achieve here,” he said, or her rationale for the ban disintegrated.
In disagreement, the court found that though a survey indicated that the vast majority of smokers had still obtained cigarettes despite the three-month-old ban, it had also suggested that some had given up.
“Although a study conducted by the University of Cape Town … and relied upon by Fita shows that 90% of smokers had purchased cigarettes during lockdown, even this report indicates that a percentage of smokers have given up smoking.
“Given the link between the adverse effects of Covid-19 and smoking, it can be said that the objective of containing the virus through imposing the ban on the sale of tobacco products was achieved.”
The court said it was immaterial whether the state may have achieved a similar aim by a less drastic means.
It also rejected the argument that the ban was cruel towards smokers, and said the fact that tobacco was addictive did not render it an essential good.
“Fita’s argument that cigarettes ought to have been considered ‘essential’ because they are addictive has no merit,” the court ruled.
Fita was considering whether to appeal the ruling.
The Batsa challenge, unlike that mounted by Fita, challenges the constitutionality of the ban. But, a finding that the ban was rational, effectively dooms any argument of unconstitutionality.
The company’s papers include an affidavit by UK respiratory expert Dr Jaymin Morjaria, who advanced that not only was there no scientific evidence to support the theory that current smokers fell more seriously ill if they contracted Covid-19, but that peer reviewed studies increasingly indicated the contrary.
Commenting on the delay in the Batsa case, the government said: “After considering requests from both Batsa and the government that the matter be heard before the high court recess starting on Monday, June 29 or at the beginning of the recess, yesterday, June 25, the Judge President decided that it could only be heard in the coming court term after August 4.
“The government acceded to that request because Batsa’s replying papers delivered the previous afternoon, 2June 24, contained substantial new matter, which means it is most unlikely that the matter will be ripe for hearing on June 30.
“The government, however, added that in view of the urgency and importance of the matter it should be heard immediately after August 4.
“Batsa persisted with its request that the matter be heard on June 30. The Judge President rejected Batsa’s request, set the matter down for hearing on August 5 and 6 and assigned three judges to hear it.”
– Staff and African News Agency