Alcohol and tobacco are an entrapment of the poor and vulnerable in particular, who are the biggest consumers, writes Modidima Mannya
It appears that, for many, smoking cigarettes is essential, even amid a health emergency such as this Covid-19 coronavirus pandemic.
There have been similar sentiments regarding alcohol.
One thought the understanding was that we were in a health crisis – the basis for the declaration of the national state of disaster.
When government made the declaration, it was alive to the implications; the encroachment on the rights of citizens.
No one wants such an encroachment. The Constitution, however, provides for it when necessary.
The Disaster Management Act has been on our statute books for 17 years.
It is one of the pieces of legislation passed by our democratic government to give effect to the permissible encroachments on our rights, authorised by the Constitution.
Those questioning government’s motives for restrictions on the sale of tobacco and alcohol have challenged it.
It never mattered to them that a disaster may occur and necessitate the activation of the Act.
The suggestion now is that the act must either not be used or be used to keep citizens in their homes, restrict movement and provide much-needed interventions, but must not interfere with the sale of alcohol and tobacco products.
We must always be reminded that the current government represents the majority who are black and that both colonialism and apartheid institutionalised the idea that black people could not be trusted.
The tobacco they want to force down our throats comes from the land taken from us by force. We must now smoke it forcefully even if it means we die.
Laws were enacted to manage the imaginary suspicions the colonial and apartheid bigots always had about us.
A black person could be arrested for walking, based purely on an imaginary suspicion of criminality.
We must not delude ourselves and imagine that the advent of democracy, and the fact that we now run government, means that we can be trusted, not as long as we take decisions which upset the status quo.
We keep being reminded of the revenue the state is losing from the absence of alcohol and tobacco trading, as if that supposed revenue meant anything in the bigger scheme of things.
As we are told of this loss, whatever amount it is, we are not told that the government carries ten times the cost of the consequences of alcohol and tobacco consumption.
These substances are, in fact, an entrapment of the poor and vulnerable in particular, who are the biggest consumers.
They happen to be the majority black who must spend their precious time in taverns, consuming liquor and destroying their health with tobacco.
Casualty sections of hospitals have been the epicentre of activity arising from alcohol consumption.
In real terms, the government pays a heavy salary bill to service the sins of alcohol.
Tobacco is another major contributor to poor health.
Those fighting government could not care less about the effect of their products on the health of citizens.
We must be told how much of the so-called lost revenue contributes to the cost of addressing those effects.
The rationale for the restrictions on the sale of alcohol and tobacco have been clearly explained to the country.
Those who make a profit do not need to agree with the rationale; they are not in law required to do so.
But government is required to have cogent reasons for imposing restrictions, having considered all factors.
The citizens of this country do not have a right to smoke in terms of the Bill of Rights.
They have a right to healthcare. The state is required, in terms of our Constitution through legislative and other means, to promote, protect and fulfil the rights of the citizens to proper healthcare.
Restricting the sale of alcohol and tobacco in terms of the Disaster Management Regulations gives effect to this constitutional obligation.
Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma is thus fulfilling that obligation for implementing the Disaster Management Act.
Those who threatened to go to court have not done so and will not. They know that the law is clear on two fronts.
The first is that Dlamini-Zuma exercised discretion, having considered all relevant factors.
As the courts put it “when a functionary is entrusted with a discretion, the weight to be attached to the particular factors, or how far a particular factor affects eventual determination of the issue, is a matter for the functionary to decide, and as they act in good faith (and reasonably and rationally) a court of law cannot interfere”.
They also know that their conspiracy theories will not see the light of day in any court of law. Our courts have made it clear that anyone who alleges malfeasance cannot do so by way of innuendo and suggestion.
The attack on the National Coronavirus Command Council is one of those gimmicks based on a combination of conspiracy, ignorance and arrogance.
To the detractors, the legal advisors of the state are so incompetent that they could advise the Cabinet to act unlawfully.
The Cabinet must be so dumb that they hardly understand how executive decisions are taken.
The detractors should point out the law that requires every government decision to be taken by a full Cabinet.
We have learnt from other changes in our lives brought about by Covid-19, and we now know that nobody dies because they cannot access alcohol or tobacco.
We must remind the detractors that there was abject poverty, inequality and unemployment before the pandemic.
Our lives matter so that we can have the land back and live a different life after the pandemic.
Mannya is an advocate, a writer and the executive director of legal services at Unisa