Cigarette ban tobacco court case

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Tobacco ban court case: Arguments for and against the sale of cigarettes

Will South African smokers rejoice or mourn a High Court judgement this week?

Cigarette ban tobacco court case

Image via Adobe Stock

Government’s controversial tobacco ban — which has frustrated South African cigarette smokers and tax watchdogs alike — will be the subject of legal scrutiny before the Gauteng High Court on Tuesday and Wednesday.

One of lockdown’s most provocative regulations is set for a fiery courtroom showdown, with the Fair-Trade Tobacco Association (Fita) going head-to-head with Cooperative Governance Minister Nkosazana Dlamini-Zuma and President Cyril Ramaphosa in a bid to nullify the prohibition of cigarettes.

The cigarette ban, which has come to exemplify government’s smoking constitutional gun in connection to the protracted lockdown, has divided both public and political opinion. According to government insiders, the debate surrounding the continued prohibition of tobacco has become a thorn in the side of the National Coronavirus Command Council (NCCC), with battle lines drawn in Cabinet’s sinking sand.

Dlamini-Zuma’s cigarette ban supported by former health ministers

Dlamini-Zuma, listed as a primary respondent in the case tabled by Fita, has ultimately been able to uphold the ban due to vocal support from Health Minister Zweli Mkhize and Home Affairs Minister Aaron Motsoaledi. Importantly, both Motsoaledi and Dlamini-Zuma have previously served as ministers of health and base their current convictions on the well-documented damaging effects of cigarettes.

The legal argument, however, is more complicated than proving the harmful health impacts of tobacco. In line with the Disaster Management Act, which governs all lockdown regulations, government needs to prove that its decision to ban tobacco is rationally connected to stemming COVID-19 infections.

Government’s defence has become infinitely more complex after the Gauteng High Court recently ruled some of the lockdown regulations ‘invalid and unconstitutional’. Although government has sought to appeal this ruling, recent legal defeats have pierced holes in the NCCC’s watertight conventions.

‘No rational basis’ to prohibit sale of cigarettes

Fita chairperson Sinenhlanhla Mnguni, who has spearheaded the charge against the tobacco ban, argues that government’s rationale has been flawed from the onset. Mnguni, who enjoys the support of millions of frustrated smokers, alleges that governmental overreach has impeded on the rights of South Africans.

While the National State of Disaster — implemented to curb the spread of COVID-19 — does allow for the forfeit of some rights, for the protection and betterment of all South Africans, government needs to prove that these sacrifices have a direct influence of the intended outcome.

Mnguni, and a several other stakeholders in the tobacco industry, argue that the prohibition of cigarettes has had no positive impact on flattening the coronavirus’ curve. To the contrary, those fighting the ban argue that prohibiting the legal sale of cigarettes has forced more unnecessary movement and has, thereby, put more people in danger of contracting COVID-19.

Lack of consultation with tobacco industry

It’s likely that Fita will lead its argument with a focus on the lack of consultations with industry stakeholders. According to Mnguni, government has been unwilling to engage with major players in the industry. This allegation goes against government’s commitments — voiced by President Ramaphosa — to consult with all who may be impacted by lockdown regulations.

Similarly, the Black Tobacco Farmers Association (BTFA) says that government has ignored its pleas to lift the prohibition or subsidise producers who have been left in the lurch due to the cigarette ban.

Government’s infamous U-turn

A major stumbling block for government’s legal defence is sure to be President Ramaphosa’s infamous Level 4 announcement concerning the sale of cigarettes. Addressing the nation ahead of the country’s move to Level 4 lockdown, Ramaphosa said that the sale and purchase of tobacco products would be allowed.

Smokers’ glee was, however, short-lived. Days later Dlamini-Zuma announced — in direct opposition to assertions made by Ramaphosa — that the tobacco ban would continue.

Fita wants to know more about the sudden U-turn and have requested access to the NCCC meeting’s minutes. Inconsistencies in government’s approach will likely weaken the defence’s case.

Public comment: Bad maths

During the infamous U-turn, Dlamini-Zuma said that an overwhelming amount of public outcry had forced government to rethink its position on unbanning cigarettes. The minister pointed to ‘2 000 submissions’ which opposed the sale of cigarettes during Level 4 lockdown. As part of its court application, Fita requested evidence of these submissions and uncovered a grievous miscalculation on government’s behalf, Fita noted:

“Of the 1535 public submissions the Respondents produced as part of the record of decision (there were also some duplicates which we did not count) 47.2% have nothing to do with the issue of cigarettes. 23.2% were in favour of smoking and/or vaping and 29.6% were in favour of the ban of the sale of cigarettes.”

Dlamini-Zuma has since been accused of lying to the public for inflating the numbers in support of her personal crusade. The Democratic Alliance (DA) has called on Parliament to hold the minister accountable for ‘violating ethics and the code of conduct’.

Burgeoning black market

While the prohibition of tobacco has hurt South African smokers, unscrupulous underworld dealers have capitalised on the ban and increased their earnings ten-fold. As the price of illicit cigarettes skyrocket, government is estimated to be losing in excess of R35 million a day in uncollected excise duties.

Tax Justice South Africa has argued that the money lost to the burgeoning black market could’ve been used to assist government’s healthcare response in the fight against COVID-19.

Government determined to uphold tobacco ban

Despite numerous looming legal challenges and a damning judicial verdict on the unconstitutionality of Level 3 and 4 lockdown regulations, Dlamini-Zuma remains determined to defend the cigarette ban and will be presenting compelling arguments before the High Court this week.

‘Scientific evidence’ – burden on ICU and ventilators

Dlamini-Zuma’s primary argument against the sale of tobacco products during lockdown relies on scientific and medical research which allegedly proves that smokers are more likely to suffer severe health complications if infected with COVID-19. This, in turn, is expected to show an increased burden on the healthcare system and ventilators, in particular. Dlamini-Zuma said:

“If a conservative estimate of 1% of the 8 million smokers were to contract Covid-19, 80,000 smokers will be infected countrywide.

If an estimated 10% were to need ICU, this would translate to about 8,000 people needing ICU hospital beds and ventilators in the country, which would greatly exceed the current availability of approximately 4,000 ventilators.”

Importantly, this argument is directly attached to the ‘rationality test’ and, if successful, will likely see the tobacco ban upheld.

Public submissions process

Both Dlamini-Zuma and President Ramaphosa have stood firm on government’s ‘public submissions’ argument. During a recent interview with the South African National Editors’ Forum (SANEF), Ramaphosa reiterated that government had received ‘thousands of objections’ to the unbanning of cigarettes.

This argument, in light of Fita’s revelation’s concerning the 1535 submissions, has resulted in Ramaphosa being branded as a liar by the DA.

Going cold turkey

While Dlamini-Zuma has noted the ‘discomfort’ experienced by smokers as a result of the ban, the minister claims that the decision to prohibit the sale of tobacco has resulted in many South African smokers kicking the habit.

Recent surveys conducted by the University of Cape Town (UCT) estimate that 16% of smokers had quit during lockdown but noted that correlation does not imply causation.

Dlamini-Zuma argues that many more have been forced to quit and that this ‘cold turkey en masse’ would ultimately ease pressure on South Africa’s healthcare systems.

The minister will be expected to provide tangible data on the number of smokers who had kicked the habit as a direct result of government’s tobacco ban.