Government has not shown how the banning of the sale of cigarettes and tobacco products would be instrumental in reducing the spread of Covid-19, the Fair Trade Independent Tobacco Association has argued in court papers filed on Monday.
The Association served government with court papers, filed at the Pretoria High Court, to challenge a decision to retain the ban on the sale of cigarettes and tobacco product sales during Level 4 of the lockdown. FITA is also seeking the courts to have cigarettes and tobacco declared as essential goods.
FITA is a non-profit company formed by Southern African-based cigarette manufacturers with the aim of promoting a fair trading environment. According to its website it has seven members, including cigarette makers Carnilinx and Gold Leaf Tobacco.
The urgent application was filed against President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma. The Presidency has not yet indicated if the application will be opposed.
'No basis' for prohibition
"There is in fact no basis to contend the prohibition of cigarette and tobacco products is related to combating the Covid-19 virus," FITA chairperson Sinenhlanhla Mnguni said in the court papers. He further slammed government's ban as being "irrational".
The ban in cigarette sales started when the lockdown was initially instituted on 26 March, as cigarettes and tobacco products were not considered essential goods. As government geared up to reopen parts of the economy through the risk-adjusted strategy, Ramaphosa said that the sale of cigarettes would be allowed under Level 4 of the lockdown. However, just days later, Dlamini-Zuma announced at a briefing that the ban would not be lifted, due to health concerns. Dlamini-Zuma said that government had received over 2 000 objections to the sale of cigarettes.
However, in his affidavit Mnguni stressed that the public comments on the "ills of smoking" have not been "adequately linked" to the fight against Covid-19. He also took aim at Health Minister Zweli Mkhize, who he claimed had not demonstrated how the ban on cigarette sales would assist in preventing the spread of the virus.
"If health was truly a factor, why was there not a prohibition on such non-essential, and unhealthy goods such as junk food, chocolates, fizzy drinks and sweets …Many of these illnesses or conditions are associated with consumption of items mentioned above, yet dealing with them has not been prohibited," he said. Mnguni pointed out that underlying illnesses such as diabetes, hypertension and chronic renal disease have been prevalent among Covid-19 fatalities.
He accused government of not properly considering FITA's submissions on the matter and that government had not followed procedural fairness. Ramaphosa's initial remarks on lifting the ban had created a "legitimate expectation" among the public. But by backtracking just a few days later, had prevented FITA and others who opposed a prohibition from making required submissions.
"South Africans had a legitimate expectation that the ban on cigarettes would be uplifted. Manufacturers and individual smokers were delighted by the announcement and began planning accordingly.
"This had the effect that there was no need to make representations regarding the sale of and the 'unbanning' of cigarettes – after all this had been dealt with by the president in his announcement," Mnguni said.
Mnguni said the prohibition was stepping on the constitutional right of FITA's members to practise their trade, as well as the rights of 11 million smokers. He cited a petition against the ban, which has been signed by nearly half a million South Africans. The petition, organised by Bev Maclean, had over 490 000 signatories on Monday morning.
He said that Dlamini-Zuma had not explained the consultative process which led to the decision to continue the ban. "The basis for the about turn is shrouded in mystery."
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Mnguni suggested that the differing statements by Ramaphosa and Dlamini-Zuma demonstrated that government was not taking a united front.
Finance Minister Tito Mboweni last week said he had opposed the ban on cigarette and tobacco product sales as well as alcohol sales. The ban has had implications for tax revenue collections from excise duties. SARS Commissioner Edward Kieswetter said under recoveries from excise duties amounted to R1.5 billion so far, with losses of R300 million specifically attributed to cigarettes, Fin24 previously reported. Kieswetter raised concerns over the illicit tobacco trade, which may result under the Covid-19 arrangements.
In a separate matter British American Tobacco South Africa (BATSA) has sought clarity on government's decision making process to continue the ban.
BATSA has a 78% share in South Africa's legal cigarette market, Fin24 previously reported. In 2019 alone, its share of taxes amounted to R13 billion (including excise duties, corporate and other taxes).
The company similarly accused government of not taking a consistent approach. Referencing the online petition, BATSA contended that the amount of signatories on the "dwarfed" the 2 000 objections to the lifting of the ban. BATSA has also said it would bring an urgent application to challenge government's decision of Dlamini-Zuma does not amend the regulations.
Ramaphosa, however, in his Monday newsletter said that government's decision to maintain the ban on cigarette sales was bound to be controversial, but that it was wrong to suggest that he and ministers were "doing and saying whatever they want" on the matter.
Ramaphosa said the National Coronavirus Command Council had reconsidered the decision to lift the ban on cigarette sales following consultations. "This was a collective decision and the public statements by both myself and the Minister [Dlamini-Zuma] were done on behalf of, and mandated by, the collective I lead," he said.
"Every regulation we have put in place has been carefully considered. Along the way there has been consultation with medical experts, various constituencies and different industries. We have been guided by international bodies and the experience of other countries," Ramaphosa added.