British American Tobacco SA, Japan Tobacco International SA and eight others with an interest in the industry on Monday served notice on the government that it was filing papers in the Cape Town High Court to have the continued ban on cigarette sales set aside. Law firm Webber Wentzel signalled that it was seeking urgent relief and gave the government until the end of the week to indicate if it planned to oppose papers.
It is asking the court to declare invalid and unconstitutional Section 45 of the regulations pertaining to level 3 of the Covid-19 gazetted by the government last week. The applicants are asking the court to hear their application on 22 June or soon thereafter. They include the Black Tobacco Farmers Association, Limpopo Tobacco Processors Ltd, the South African Tobacco Transformation Alliance and the South African Informal Traders Alliance.
In their founding affidavit, the applicants challenged Cooperative Governance Minister Nkosazana Dlamini-Zuma’s argument that cigarette’s could promote the spread of Covid-19 because people tended to share them. BATSA CEO Andre Joubert said by that token, the government should also have banned soft drinks, and people often drank from the same bottle.
Turning to her second argument, namely that smoking exacerbates the risks associated with the coronavirus, Joubert said there was insufficient evidence of this, as well as studies in France that contradicted the supposed danger. There is insufficient evidence to draw any firm conclusions on the relationship between smoking, vapid and Covid-19 that would justify the continued ban on cigarette and vaping sales.”
The company added that Dlamini Zuma did not revert to the tobacco industry before reversing an undertaking given by President Cyril Ramaphosa in a televised address to the nation on 23 April that the sale of cigarettes would be allowed under level 4 of the lockdown, which took effect on 1 May.
It described itself as “astonished” by her decision, but said it did not proceed to court but rather to reason with the government to allow cigarette sales to resume during level 3. Despite an assurance from the Presidency that the government would consult industries affected by the regulations, the tobacco industry was never consulted. BATSA also sent a submission to President Cyril Ramaphosa on 22 May but never received a response.
“Indeed I do not even know whether these submissions were ever read,” Joubert remarked in the court papers.” BATSA said the ban has hurt the industry, tobacco growers, the government and millions of smokers.
The company said it has lost more than R2 billion in revenue in the first nine weeks of the national lockdown, while the government lost an estimated R2.4 billion in tax revenue as a result of the ban. It argued that the ban has robbed the milllions of South Africans who smoke or vape of a form of relaxation while they endure the extraordinary stress of the global pandemic and weeks of being confined to their homes.
The court papers challenge the constitutionality of the ban as an “irrational interference” on the rights of tobacco farmers, manufacturers, wholesalers and retailers, and an infringement on the dignity, privacy and physical integrity of smokers. Dlamini Zuma is listed as the first respondent.
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