People are beating cigarette ban so it must be 'unreasonable', Fita says in latest court battle against NDZ

SA's prohibition on cigarette sales has failed and, therefore, there “cannot be any possible basis for the ban”.

This is according to the Fair-Trade Independent Tobacco Association (Fita) in its latest salvo against co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma and government's ongoing ban on the sale of tobacco and related products.

“Once it is accepted (as it must be) that the ban cannot be shown to have the effect of stopping smoking, there cannot be any possible basis for the ban,” Fita CEO Sinenhlanhla Mnguni said in an affidavit filed with the Supreme Court of Appeal (SCA) on Tuesday.

Fita said the basis for and validity of the lockdown regulation imposing the ban needed to be assessed within the boundaries of the enabling legislation and “proper” interpretation of the Disaster Management Act.

Fita has approached the Supreme Court, seeking leave to appeal the North Gauteng High Court’s dismissal of its challenge against the ban.

Mnguni said in his affidavit that while Dlamini-Zuma stood firm with the contention that the threshold for the ban was one of “reasonable necessity”, it was reasonably possible the SCA would apply the threshold of “strict/absolute necessity”.

“There is reasonable prospect the SCA would find that the undeniable reality of the illicit trade is dispositive of the contention that the means chosen by the minister to achieve her stated objective are either rational or necessary,” Mnguni said.

He argued that smokers continued to source the ongoing supply of cigarettes and tobacco products.

According to Mnguni, Dlamini-Zuma had continued to disregard the need to give “due and proper” weight to issues of fundamental importance such as “far-reaching economic, physical, psychological and social considerations”.

Mnguni said the high court had failed to have due regard to expert evidence which pointed to the “serious shortcomings” in the minister’s approach, that is “the inconclusive nature of the internet and other reports relied upon, that none of the surveys relied upon took into account relapse rates which meant that quit rates could not be drawn from the surveys”.

“The surveys relied upon by the minister were in themselves without any probative value and particularly unscientific and crude.”

He argued that issues which required determination by the SCA had been raised by Fita in its application.

“The prohibition in question and in the context of ministerial decree is unprecedented in SA and is currently not in place anywhere else in the world,” Mnguni said.

TimesLIVE