Tobacco body seeks court order allowing cigarette sales
THE COURT application by the Fair Trade Independent Tobacco Association (Fita) to set aside the government’s decision to ban the sale of cigarettes during level 4 of the Covid-19 regulations is set to be opposed by the state.
According to the government, while Fita’s application brought up new information that still needs to be studied further, it however still stands by its decision not to allow the sale of tobacco products.
The intention to oppose the application was revealed by Lungi Mtshali, spokesperson for the Department of Cooperative governance and Traditional Affairs (Cogta), whose minister, Dr Nkosazana Dlamini-Zuma, is the second respondent in the matter.
“We are studying the application as it deviates from the original demand. But I can state categorically that the government will oppose the application to set aside the temporary ban (on) the sale of cigarettes,” Mtshali said.
The first respondent in the case is President Cyril Ramaphosa.
The association is represented by Morgan Law Inc and the government was given until this Friday to indicate whether it would oppose the application or not.
Independent Media has learnt that the matter will be heard at the Pretoria High Court on Tuesday next week.
In the 106-page application, which includes the opinion of a health expert, a petition calling for the government to lift the ban and the economic impact of the ban on tobacco companies, the association also wants to know how the government reached the decision.
The main affidavit came from the association’s chairperson, Sinenhlanhla Mnguni, who argued that the decision was irrational and even ignored the input from over 400 000 people who pleaded with the government to allow the sale of cigarettes from May 1 when the country moved to Level 4.
Mnguni further argued that the ban infringed on the rights of 11 million smokers in the country who are also likely to develop health complications should they not have access to cigarettes during the lockdown.
“Fita has brought this application on an urgent basis in terms of Uniform Rule 6(12) inter alia on the basis that: 13.1. section 27 of the level 4 regulations directly affects the freedoms previously enjoyed under law by approximately 11 million cigarette smokers and tobacco users in South Africa; 13.2. the sudden and clearly ill-considered ban on the sale of legal tobacco products seriously affects and impacts upon the health and welfare (both physical and psychological) of millions of citizens (with well-recognised dependencies), without regard for the far-reaching traumatic effects flowing from the withholding of these products,” reads the first part of Mnguni’s affidavit.
To back up its claims on the health complications, the association enlisted the help of Sheethal Behari, a clinical psychologist from Psych Matters Centre in Johannesburg. Behari explained how cigarettes deprivation affects smokers.
On the same application, Mnguni says the ban, if not set aside or reviewed, will negatively impact their members’ income.
“The prohibition has an enormous negative commercial impact on the manufacturers and retailers of tobacco products and their right to pursue their businesses. In this regard, by way of example, a report from one of the applicant members, Gold Leaf Tobacco (Pty) Ltd as well as a confirmatory affidavit as to the contents thereof from the author, Ebrahim Ahmed Adamjee … the prohibition has well-recognised negative results in the form of increased illicit trade.”
Also roped in to help the association is Beverley-Anne Maclean, the creator of a petition that netted over 400 000 signatures calling for the National Command Council to allow the sale of cigarettes on Level 4. Maclean sent an affidavit which detailed how many people supported the petition.
Meanwhile, British American Tobacco, the biggest player in the tobacco industry, was yesterday still mum when asked whether it will proceed with its threat to take the government to court if the ban is not lifted.