As the country cries out for a solid Covid-19 vaccine strategy, the government has moved to appeal the recent court ruling that last year’s tobacco ban was unconstitutional and raised the spectre of a return to one of the most egregious measures it imposed in response to the pandemic.
Papers have been filed with the Supreme Court of Appeal (SCA) by counsel for Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, her spokesman said, three weeks after a full bench of the Western Cape high court found that the ban fell foul of both the constitution and administrative law.
The ruling, handed down on December 11, was a victory for British American Tobacco South Africa (Batsa) six months after its industry rival, the Fair Trade Independent Tobacco Association (Fita), unsuccessfully challenged the ban in the Pretoria high court.
But the judgment has now effectively been suspended by the government’s application.
On Tuesday, Dlamini-Zuma’s office said the government believed the Fita ruling should be upheld and that the Western Cape high court had been bound by it when hearing the Batsa application.
This same argument it wants to bring before the SCA was advanced by her lawyers in the high court last year and rejected — firstly, because the Western Cape judges believed their northern counterparts had erred significantly, and secondly, because the application involved wider legal principles not raised in the earlier case.
Batsa called the ban unconstitutional, disproportional and unnecessary
Batsa had ventured where Fita did not by arguing that the ban was unconstitutional on several counts.
A full bench accepted its arguments that the minister failed to justify the limitations she placed on smokers’ rights to dignity, privacy and physical integrity — guaranteed in sections 10, 14 and 12 of the constitution respectively — and on that of tobacco producers not only to choose their trade but not to be deprived of the property that constitutes their livelihood through the economic impact of the ban.
Senior counsel Alfred Cockerill argued that the minister had not shown that a significant number of hospital beds would not be occupied if smokers were forced to quit and prevented from falling severely ill with Covid-19.
If there were indeed a link between smoking and exacerbated Covid-19 symptoms, he submitted, it could be extrapolated accurately “on the back of a cigarette packet” from the minister’s own figures that at any given time the cigarette ban would free up at most 16 beds in South Africa’s hospitals.
The court found that Dlamini-Zuma had, as the sponsor of section 45 of the disaster regulations imposing the prohibition, failed the proportionality test in that it was “plain that the disadvantages of the ban far outweigh the advantages in as far as smokers are concerned”.
Batsa also succeeded where Fita had failed to persuade the bench of the argument that under section 27 (2) of the Disaster Management Act, the minister needed to prove that any harm caused by the measure was necessary to prevent a greater harm, in this case the burden smokers with Covid-19 would place on the strained healthcare system.
The judges in Pretoria in June found that the ban was a rational step, taken at a time of crisis, and that therefore Dlamini-Zuma had cleared the threshold of necessity.
But the Western Cape court took a different approach and said it believed they had erred substantially with this wide reading of the necessity test.
In her latest court papers, the minister returns to the point and again conflates rationality and necessity.
She argues that the court only has to establish that there is a rational connection between a desired outcome — in this case preventing hospitals being overwhelmed — and her chosen means of arriving there. She seeks to dust off the argument that the temporary nature of a ban robs tobacco farmers and sellers of the argument that it infringes on their right to choose their profession or trade.
Cockerill had successfully countered that the impact of even a temporary ban could put tobacco industry stakeholders out of business.
Both courts agreed Dlamini-Zuma did not overstep her powers
The Batsa ruling went in Dlamini-Zuma’s favour on one important count.
Like Fita before it, the tobacco giant tried and failed to persuade the court that regulation 45 was ultra vires because the Disaster Management Act did not allow the minister to impose restrictions on the tobacco trade.
In both court cases, the industry’s argument went that because the Act explicitly gives the minister the power to limit alcohol trade but remains silent on tobacco, it follows that restrictions on this industry were off limits.
But the Cape court agreed with the Gauteng ruling.
In theory, this leaves the government room to legally reintroduce a ban, even if the Cape ruling stood, should it be able to show that it was both necessary and proportionate to the harm resulting from the prohibition.
There was a hint last week that the matter could come back to haunt the industry when advocate Dali Mpofu asked on Twitter why, when placing the country back under level 3 lockdown restrictions and banning alcohol sales outright, President Cyril Ramaphosa had not banned cigarette sales anew.
Questioned about tobacco products at a briefing the day after the presidential announcement, Dlamini-Zuma simply said these remained allowed “for now”.
On Tuesday, her spokesperson Mlungisi Mtshali cast the government’s appeal bid as a quest for legal clarity and suggested a fresh ban was not on the cards.
“There are two courts that have found differently on the same issue and we would really like finality on the issue,” he said.
“But there are also aspects of the Western Cape high court ruling that we really disagree with. So it is mainly a case of us really wanting clarity.”
There is not much succour for the country’s estimated eight million smokers and the tobacco industry in the fact that the government’s application for leave to appeal was not filed on an urgent basis. Nor can comfort be found in the wide view of the legal fraternity that the Pretoria high court ruling was unsound and the appeal court’s decision in mid-August to grant Fita leave to appeal it. Within days of this ruling from the appeal court, the tobacco ban was lifted after five months, in which it cost the fiscus some R35-million a day in unpaid excise duties and sent the illicit tobacco trade into overdrive.
Industry seeks clarity
Fita, in a move it was always going to rue, shortly afterwards opened talks with the state on withdrawing the appeal.
It sought to extract an undertaking from the government that a ban would not be reintroduced, but had to settle for an assurance from the minister that the industry would be consulted in the event it was.
Fita’s decision was driven by its members’ reluctance to shell out more on legal fees and their fear of alienating the same administration that determines taxes and tobacco control regulations.
On Tuesday, the association was left to plead with the government not to waste scarce resources needed to fight the second wave of the coronavirus pandemic on a legal battle, and to respect the agreement to consult the industry if another prohibition was in the pipeline.
Batsa officials have declined to comment on the government’s application, filed jointly by Dlamini-Zuma and Ramaphosa, for the time being.
But an impeccable source said lawyers for Batsa would on Wednesday file a counterapplication at the high court for leave to appeal the court’s decision that each party pay its own costs.
“We always thought that this aspect of the ruling was unfair and that a cost order should have been given against them,” he said.
Batsa plans to bring the application on a conditional basis, meaning that it would withdraw if the government were to withdraw its application for leave to appeal.
If the government in the meanwhile moved to reintroduce a ban on tobacco product sales, Batsa and its co-applicants could urgently approach the court for an order upholding the December judgment pending the appeal.
It is worth noting that Dlamini-Zuma’s deadline for filing an application for leave to appeal was due to expire on Wednesday.
Therefore it is not clear whether she is simply reserving her options in this regard or is determined to revive the ban.
Her application for leave to appeal to the SCA will be heard by the court a quo, in other words, the same court in which the matter was originally heard. Should this fail, she has the option of directly petitioning the appeal court.
And the appeal court, regardless of any liberal leaning one may infer from its readiness last year to entertain an appeal by the industry, could take up to a year to deliver a ruling. It means that a fresh legal wrangle on the tobacco ban could run for much of the life span of the health crisis itself.