Govt to appeal ‘unconstitutionality’ of tobacco ban

Last month the Western Cape High Court ruled in favour of British American Tobacco South Africa (BATSA), ruling that regulation 45 of the Disaster Management Act was unconstitutional.   

The court found that government’s decision to ban sales during the country's hard lockdown denied smokers their agency. 

But President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma believe the court erred in its judgment.  

“I can confirm that we indeed filed an application for leave to appeal the judgment,” says spokesperson for the department Lungi Mtshali.

“We set out grounds on which we are appealing this judgment. We studied it carefully and there are aspects of the judgement that we felt that we needed to challenge the court to really think about and really guide us on.”

Government will base its appeal on 13 grounds. 

Cooperative Governance argues that the court erred in not finding that regulation 45 was rational.  

According to Mtshali, government also believes the court erred in finding that a previous judgment against the Fair-Trade Independent Tobacco Association (Fita) was not binding to it. 

“This gives us a dilemma that we have now two judgments on literally the same matter by two high courts that are diametrically opposite, so really it’s about providing the country with clarity in terms of what can and cannot be done,” Mtshali adds. 

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Fita chairperson Sinenhlanhla Mnguni says it’s concerned about government’s decision to reignite the matter.  

“We feel that this step by government is regrettable given the irreparable harm on the tobacco industry along its value chain which was occasioned by the 5 month-long ban on the sale of cigarettes and tobacco-related products for consumption by the local market.

“We are of the view that the many legal challenges government has had to defend during the lockdown period, due to its implementation of many irrational regulations, have meant that government has expended a substantial amount of funds and other resources to fighting unnecessary legal battles instead of utilising those resources to combat the spread of the coronavirus and its impact on the citizens of this country.”

Mnguni says government’s petition may be a sign of trouble to come.  

“This step by government is further worrisome in that it signals the potential arrival of yet another cigarette sales ban given that the pending appeal will suspend the operation of the Western Cape High Court judgment until this matter is properly ventilated before the courts, which matter could take months, if not longer, to resolve.”