Western Cape judge president John Hlophe has become the subject of criticism from tobacco companies after he postponed the hearing of their case against the cigarette ban that forms part of the national lockdown, according to a report by The Sunday Times.
British American Tobacco SA (BATSA) and nine other parties are taking the government to court to get the ban on tobacco sales during lockdown lifted.
The case was originally agreed to be heard on Tuesday, but Hlophe postponed the case by over a month.
The Sunday Times, however, said it has seen emails between the registrar in the chambers of Hlophe and the applicants’ lawyers in which everyone agreed the case should be heard on 30 June.
Instead, the registrar told the applicants on Thursday that Hlophe would only have the matter placed before a full bench in six weeks’ time.
The state attorney had reportedly written to Hlophe and agreed that the case must be delayed because new matters had been included in the affidavits, but this is denied by the applicants.
Mike Evans of Webber Wentzel, who is representing the applicants, urged Hlophe to reconsider his decision.
“In my 33 years of practice I have never seen a situation like this before, where the parties are given the go-ahead in urgent application to agree on a date, they do so, all the papers are filed, and two days later that decision is reversed,” Evans told his clients.
Ban causes massive losses
BATSA said that the tax loss the country is incurring due to the ban is one of its reasons for claiming that the case is urgent.
It said that between 30 June and the new date on which the case will be heard, the country will lose over R1.4 billion in excise tax.
“Thousands of jobs stand to be lost in the economy as criminality becomes the new normal,” said BATSA.
“We are considering all our legal options and will be liaising directly with the government, as we had both previously agreed that the matter was urgent and needed to be heard next Tuesday.”
“Postponing a case that has been agreed, by both sides, to be urgent is something that we believe is unprecedented and is very worrying.”
FITA case dismissed
This delay follows another entity’s case over the tobacco ban being dismissed by the North Gauteng High Court.
The Fair Trade Independent Tobacco Association (FITA) confirmed to MyBroadband that the court has dismissed its case, which argued that the government’s implementation of the restrictions was arbitrary and illogical.
“One of the first issues that we find difficult with the government’s stance is the arbitrary nature in which these regulations are implemented,” FITA said.
“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.”
“We accept that there is harm that is suffered by one’s lungs especially if they are a long-term smoker, but that cannot be undone by a cessation of six weeks.”
However, the judgement claimed that Minster Nkosazana Dlamini-Zuma is justified in claiming that the restriction on tobacco product sales is necessary.
“In our view, the necessity requirement is met once it is shown that there is a rational connection between the ban on tobacco sales and curbing the scourge of the COVID-19 virus in an attempt to prevent a strain on the country’s healthcare facilities, a finding which we have already made,” the judgement said.
“We are persuaded by the Minister’s submission that FITA’s argument is misconceived as it ignores the context under which the regulations were promulgated.”