South Africa’s cigarette ban court battle – What you need to know

South Africa’s national COVID-19 lockdown has come under significant fire from a variety of sources.

Opposition parties, industry organisations, and the High Court have taken exception to controversial regulations that limit the movement or activities of citizens.

One of the fiercest legal battles rages over lockdown regulations which prohibit the sale of cigarettes under COVID-19 alert level 4 and alert level 3.

When it was announced that the sale of cigarettes would be banned under level 4 of the lockdown, British American Tobacco South Africa (BATSA) decided to take the government to court over the regulations.

On 6 May, however, BATSA dropped its plans, stating that it had decided to negotiate with the government regarding the application of lockdown regulations.

“We are convinced that by working together we can find a better solution that works for all South Africans and removes the threat of criminal sanction from 11 million tobacco consumers in the country,” BATSA said in a statement.

After it was announced that the government had decided to keep the cigarette ban in place during level 3 lockdown, however, BATSA reverted once again, stating that it had commenced urgent legal proceedings to challenge the ban – adding that the government had betrayed its trust.

“The government’s continued ban on legal tobacco sales is threatening the survival of the legal tobacco sector and the livelihoods it directly supports,” BATSA said.

“It has only succeeded in significantly growing a massive and nationwide illegal industry at the direct expense of law-abiding businesses, citizens and taxpayers.”

The Fair-Trade Independent Tobacco Association (FITA) has also taken legal action against the cigarette ban imposed by the government, and it is this case which is of the most immediate concern to South African smokers.

Case to be heard on Tuesday

The legal action bought by FITA against the government’s ban on cigarette sales is set to be heard on Tuesday 9 June and Wednesday 10 June.

FITA has said that the core issue of the case revolves around whether the banning of the sale of cigarettes is rational.

The government argues that smoking could lead to an increase in coronavirus cases and even death, but FITA said this is not an issue that is limited to cigarettes.

“If we go into the depths of the legal argument it is quite baffling as they state in their own papers, and even in some of the medical reports that they rely on, that there is no link between smoking and COVID-19.” the organisation said.

South Africa’s lockdown regulations were recently found to be unconstitutional, and invalid by the Gauteng High Court, although the ban on cigarettes was specifically excluded from this ruling.

The Gauteng High Court has directed the Minister of Cooperative Governance and Traditional Affairs (COGTA), in consultation with other ministers, to amend, review, and republish the regulations.

The dispute over the cigarette ban will be held separately to this ruling, however, meaning the outcome of FITA’s court cases this week is more likely to influence the regulations regarding tobacco sales in South Africa.

Ramaphosa explains cigarette ban logic

In a recent response to questions from the Democratic Alliance, President Cyril Ramaphosa said that the decision to prohibit the sale of cigarettes was based on a variety of factors.

These included submissions from concerned parties and medical literature which focused on the effects of smoking on public and individual health.

“After my initial announcement on 23 April 2020, following representations that were made by various organisations and individuals and further consideration of relevant medical studies and advice, a different position was ultimately adopted by the
National Coronavirus Command Council and thereafter by Cabinet before the regulations were promulgated,” Ramaphosa said.

“At this stage, it is difficult to determine when the ban on the sale of tobacco and related products will be lifted.”

He said that this decision would depend on factors including the progression of the disease in South Africa, the readiness of local health systems, and the “evolving knowledge on the nature and impact of the virus itself”.

More information on the government’s substantiation of its continued ban on cigarettes as well on the arguments against the ban is expected to become available as the matter is heard in court this week.

Now read: ANC accused of using COVID-19 to seize control in the Western Cape

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South Africa’s cigarette ban court battle – What you need to know