The government confirmed that it is not considering a new Covid-19 cigarette ban. The application to appeal a ruling that invalidated its previous pandemic-related ban is drivel solely by “constitutional concerns” Mtshali maintained that the government’s intended appeal was driven by the fact that the BATSA ruling – which found that enforced the tobacco ban was unconstitutional and invalid – raised constitutional issues and government believes it needs to be addressed and be clarified by a higher court.
Government recently re-imposed a ban on the sale of alcohol, as a second wave of Covid-19 infections threaten to overwhelm South Africa’s already overburden health system, with the aim of reducing trauma-related injuries.
In a ruling delivered in December 2020, the Western Cape High Court found that the cigarette ban was “unnecessary”. In a long and detailed judgement, the court questioned the expert evidence that Dlamini-Zuma said had informed the ban and found it was unscientific.
The government was adamant that the court was wrong to find the ban had violated constitutional rights to dignity, bodily and psychological integrity and privacy. It insisted this finding was unjustified because Regulation 45 did not ban smoking and instead prohibited the sale of tobacco products.
The state further maintained the court’s ruling should have been bound by findings made by the North Gauteng High Court in Pretoria when it dismissed the Fair-Trade and Independent Tobacco Association’s (FITA) challenge to the rationality of the cigarette sales ban. The court rejected FITA’s argument that the law required the government to show the Covid-19 regulations it promulgated under the provisions of the Disaster Management Act were “strictly necessary” not just rationally connected to the aim of reducing the impact of the pandemic.
FITA, which abandoned its appeal against the North Gauteng High Court’s ruling yesterday, said it “reached an agreement with government that we be consulted by government should any future cigarette bans be in the pipeline, and we hope that this provision of the agreement in place between our organisation and government is adhered to”
Despite the government’s assurances, FITA maintained the State’s appeal application “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” This process could take months or even years to be resolved.