While judgment has been reserved in the legal tobacco war over a ban on the sale of cigarettes, it remains to be seen what the next move will be for the National Coronavirus Command Council.
On Wednesday, the North Gauteng High Court, Pretoria heard that Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma had failed to provide empirical evidence supporting her claims that smokers were more prone to contracting the deadly virus.
Instead, it heard that the ban on cigarettes sales presented an opportunity for the illicit trade of cigarettes as well as underworld activities and that it had also severely affected the collection of tax in the country.
These were the submissions made by the Fair-Trade Independent Tobacco Association (Fita) in its bid to ask the court to set aside the government’s decision to forge ahead with the ban.
While the application was lodged against the government under President Cyril Ramaphosa, Fita, however, in its papers, lodged a stinging attack on Dlamini Zuma.
Fita said the minister had failed to demonstrate, in her replying papers, that smoking caused a serious burden on health-care services.
She was also slated for submitting that she relied on World Health Organisation (WHO) reports to justify the ban. Fita’s legal counsel, advocate Arnold Subel SC, alerted the full Bench of WHO’s latest reports dated May 8 and 26 saying there was no conclusive evidence of the link of smoking to Covid-19.
Subel was also adamant that the prohibition on the sale could not realistically result in any meaningful reduction in smoking, saying smokers were still able to secure the supply of cigarettes and tobacco products.
“The ban has unsurprisingly simply substituted illegal unregulated products for legal well-regulated and controlled products. The view that the ban will eliminate smoking and thereby end the illicit trade is particularly naive and clearly not an informed one,” he argued.
He further pointed out that a “number of competing considerations needed to be factored into the assessment of rationality, including the impact on the physical, psychological and emotional state of smokers”.
Subel also said Dlamini Zuma should have considered the serious impacts flowing from the sudden withdrawal of the addictive products.
He further maintained that Dlamini Zuma had failed to consider the enormous damage to a large industry including farmers and their employees, the manufacturers, and other related players such as informal traders.
“It is no secret that the South African Revenue Services does not support the ban.
“The effect of the ban has been to deprive the fiscus of a significant source of much-needed revenue (particularly in these very trying times) but at the same time facilitates enormous profiting by illicit traders. Since the illicit sale of illegal cigarettes and tobacco products will continue unabated and will in fact flourish, it is difficult to comprehend the logic or rationality in the approach.”
In its reaction the government, which submitted its argument through advocate Marumo Moerane, said the promulgation of the Disaster Management Act was to save lives in the country.
Moerane said the decision to prohibit the sale of tobacco products during level three and four was taken after considering public submissions and relevant medical literature.
He said studies by the Human Sciences Research Council and UCT showed that smoking had been reduced significantly since the ban but Fita’s lawyers questioned the veracity of the studies in his arguments in courts. He said the ban was also supported by the South African medical fraternity and experts.
“Covid-19 is a new disease. As a result, scientific knowledge is still evolving. However, the evidence is that the use of tobacco products increases not only the risk of transmission of Covid-19 but, most significantly, the risk of developing a more severe form of the disease.
“This will in turn increase the strain on the public health system, by increasing the number of people who will need access to scarce resources such as intensive care unit beds and ventilators,” Moerane said.
He highlighted that the country had a shortage of ventilators and ICU facilities, saying it was a biggest threat to countries with high infection and mortality rates due to Covid-19.
While judgment has been reserved and the matter was heard in an open court, it is believed that the final ruling will be made in closed session.