Tobacco ban is to protect health-care system, Nkosazana Dlamini-Zuma tells judges

Nkosazana Dlamini-Zuma came out guns blazing on Thursday in her legal attempt to keep cigarettes out of public reach during the Covid-19 pandemic.

The co-operative governance minister and President Cyril Ramaphosa are opposing a lawsuit brought by British American Tobacco SA (Batsa) and nine other litigants — including farmers, consumers and processors — over the cigarette sales ban.

During the second day of the hearing before a full bench of three Cape Town high court judges, Dlamini-Zuma revealed a list of experts and medical literature upon which she based her decision.

Her counsel, Karrisha Pillay, spent the morning explaining the rationale behind the minister’s decision and strove to poke holes in her opponents’ evidence. Among other things, Pillay said that, unlike Batsa, Dlamini-Zuma relied on peer-reviewed literature.

“There is no question of my client's experts’ evidence being far-fetched,” said Pillay.

In court papers, Dlamini-Zuma said: “The overarching reasons for the decision to continue prohibiting the sale of tobacco products for domestic consumption in alert level 3 are to protect human life and health and to reduce the potential strain on the health-care system, particularly given the predicted steep rise in the rate of infections by the novel coronavirus (SARS-CoV-2) after the lifting of the level 4 restrictions.”

Pillay said the minister had since been proven correct in her anticipation of a steep rise in infections.

Emphasising the possible strain smokers could pose on the health-care system, Pillay asked the court to remember that the constitution says no-one may be refused emergency treatment and that the state has limited resources.

Pillay said ventilators — among other apparatus required for Covid-19 treatment — fall under emergency services.

Dlamini-Zuma acknowledged that the cigarette sales ban is “a cautious approach”, but it was aimed at ensuring state resources are not overwhelmed.

In her voluminous court papers, Dlamini-Zuma said she relied on the expertise of, among others, Prof Leslie London, head of public health medicine at the University of Cape Town; Prof Kennedy Nyamande, head of pulmonology at the University of KwaZulu-Natal; and the SA Medical Research Council’s Dr Catherine Egbe.

She admitted that scientific knowledge of Covid-19 is still evolving and the link between tobacco products and the pandemic is yet to be established.

“However, the preponderance of the evidence from the studies that have been done so far is that the use of tobacco products may not increase the risk of transmission of Covid-19 but does increase the risk of developing a more severe form of the disease,” the minister's court documents read.

“This, in turn, will increase the strain on the health system by increasing the number of people who will need hospitalisation and access to resources such as intensive care unit beds and ventilators.

“The emerging research about the relationship between smoking tobacco products and Covid-19 shows that the severity of Covid-19 outcomes is greater in smokers than non-smokers.

“Smokers have higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non-smokers. Smoking thus increases the strain on our limited health care resources, including our health workers.”

Dlamini-Zuma said, in court documents, that her decision was also informed by a statement issued by the World Health Organisation (WHO) on May 11.

“In this statement the WHO says ... tobacco smoking is a known risk factor for many respiratory infections and increases the severity of respiratory diseases.

“A review of studies by public health experts convened by the WHO on April 29 found that smokers are more likely to develop severe disease with Covid-19, compared to non-smokers. Covid-19 is an infectious disease that primarily attacks the lungs. Smoking impairs lung function, making it harder for the body to fight off coronaviruses and other diseases.”

Pillay told the court that several reputable South African medical organisations support Dlamini-Zuma’s decision to ban cigarette sales. They include the National Council Against Smoking, the SA Thoracic Society, the College of Public Health Medicine and the Heart and Stroke Foundation of SA (HSFSA).

“We applaud the government of SA for putting the nation’s health first in the response to Covid-19. Health supersedes commercial interests,” a letter from the HSFSA said. “While the right of the individual is important, when we are facing a crisis of this scale that poses a danger to society, the rights of the collective to health must take precedence.

“We encourage smokers to use this time to stop smoking to improve their health, and to reduce the likelihood of a severe illness should they contract Covid-19.”

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