‘This is cruelty’: cig makers, NDZ exchange blows in court

The cigarette ban was an act of cruelty designed to beat people into submission.

This was the argument by the Fair Trade Independent Tobacco Association (Fita) before a full bench of the high court in Pretoria on Wednesday. It wants regulations prohibiting the sale of tobacco products under level 4 and 3 of lockdown declared invalid.

Cooperative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma had an opportunity, through her advocate, Marumo Moerane, to explain why the government was persisting with the ban.

After hearing arguments from both parties, the bench, headed by Gauteng judge president Dunstan Mlambo, reserved judgment on Wednesday afternoon.

In its arguments presented by Arnold Subel, Fita said the government’s temporary ban on the sale of tobacco products was aimed at stopping people smoking, an act of cruelty designed to beat people into submission.

“That’s why we have described this as a sledgehammer to beat people into submission. To force people to immediately go to what they colloquially call ‘cold turkey’ is an act of cruelty,” said Subel.

Subel said none of the reasons put forward by the minister prohibiting their sale could pass rational muster.

He said there were no conclusive studies Dlamini-Zuma relied upon which showed that the risk of being infected with Covid-19, the risk of being hospitalised and the risk of death from Covid-19 was higher in people who smoked.

He said the World Health Organisation (WHO) stated last month that no peer-reviewed studies had been published to ascertain these facts.

Subel said this meant there were no conclusive studies to rely on showing smokers were more at risk.

Judge Annali Basson — one of three judges who will decide whether the regulations prohibiting cigarette sales are rational and should be set aside —  questioned Moerane about whether the ban had actually resulted in smokers quitting.

“As I understand the papers, the purpose of the tobacco ban is to ensure that our health system is not overburdened. I accept that,” she said.

“But the tobacco ban is directed at the sale of cigarettes ... in other words, people can continue to smoke.”

The judge then asked how the ban on the sale of cigarettes achieved the purpose of stopping people from smoking, particularly given that “some people are fortunate enough to stock up on cigarettes, so they are going to continue to smoke”.

“Those who cannot, can in many instances, access the black market and buy cigarettes there. So my questions simply is: how does the ban on the sale of cigarettes, in circumstances where people are not going to stop smoking, achieve the purpose of alleviating the impact on the health system?”

Moerane answered that the purpose of the ban was to reduce the availability of cigarettes. While admitting that it could not totally restrict that availability, he reinforced Dlamini-Zuma’s stance that there was evidence that many South African smokers had quit.

Moerane said Dlamini-Zuma could not be expected to produce “proof” of the “necessity” of a cigarette ban by showing that, unless it was imposed, “the health care system will definitely collapse”.

“If the minister was to wait for such definitive proof, she would almost certainly be in breach of her constitutional obligation to promote and protect the rights to life and health care, as she would have failed to be sufficiently proactive in preventing risk to the public from materialising.”

Fita’s case comes as the government fights nine other legal attacks on the lawfulness of cabinet’s Covid-19 National Coronavirus Council, the Disaster Management Act that governs how regulations are formulated and put into effect and the rationality of the regulations themselves.

On Monday, Dlamini-Zuma’s lawyers filed an application to appeal a scathing Pretoria high court ruling that found that government’s Level 4 and 3 regulations, were largely “not rationally connected to the objectives of slowing the rate of infection” of Covid-19.