Any benefit achieved by the continued ban on tobacco sales would be outweighed by far by the damage caused, British American Tobacco SA's legal team argued in the Western Cape High Court on Wednesday.
BATSA - South Africa's largest cigarette manufacturer, whose brands include Dunhill, Peter Stuyvesant and Lucky Strike - is challenging the ban. In a separate challenge, the Fair Trade Tobacco Association has approached the Supreme Court of Appeal for leave to appeal its case challenging the ban.
Advocate Alfred Cockrell SC argued on behalf of BATSA that the ban was aimed at reducing the occupation of intensive care unit (ICU) beds by smokers during the Covid-19 pandemic. The minister has indicated that the aim of the ban is to stop people from smoking so that they do not get Covid-19 in a more severe form, leading to having to occupy ICU beds when these are in great demand during the pandemic.
However, he argued, based on what Minister of Co-Operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma alleged in her court documents, just 10% – 15% of the country's smokers will likely quit due to the ban because of the high price of illicit cigarettes.
Calling it a "perverse justification", Cockrell said the minister had not at any point said what would be done to stop people from purchasing illicit cigarettes.
He further alleged that, based on figures given in the minister's court documents, BATSA's legal team made its own calculations and estimated that there would likely only be about 16.4 fewer ICU beds occupied at any given time due to the ban, compared to R38 million lost to the fiscus daily in excise duties. This was without counting job losses across the value chain, he added.
BATSA's challenge to the ban is twofold. It is arguing that the decision is unconstitutional, and that it is a violation of administrative law.
The constitutional challenge rests on BATSA's view that the ban on sales violates the rights of consumers to make their own decisions, which includes the right to smoke if they so choose; as well as the right to privacy.
Consumers have the right to decide what they do in their own homes, Cockrell said, arguing that nowadays people may even smoke marijuana in their own homes.
He added that the integrity of consumers to be allowed to smoke to reduce stress levels is also being violated. Even before the pandemic, adults were warned that smoking is harmful, but they were allowed to smoke if they wanted to, Cockrell said.
Cockrell further argued that the minister is incorrect to suggest that the ban is directed at tobacco sellers and thus that any impact on the rights of smokers is incidental. In fact, said Cockrell, the aim of the ban was inherently directed at smokers.
However, he added, the rights of tobacconists were also at stake, as they were being forced to close their shops. The same applied to tobacco farmers, who were struggling to sell their raw tobacco to manufacturers (because the manufacturers themselves are unable to sell to retailers or consumers) and as a result the continued viability of these farming operations is in jeopardy.
The entire tobacco value chain was at risk, Cockrell argued.
The minister has previously argued that tobacco farmers are not forbidden to produce as they are allowed to export.
Cockerell said it is not so easy to set up export markets as most tobacco produced in SA is for the domestic market.
Cockrell called into question government's medical basis for the ban, saying that, while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of Covid-19.
According to Cockrell, there is a medical dispute regarding this.
While Dlamini-Zuma has based her argument on medical literature, including a paper from the World Health Organisation, BATSA's medical expert says the evidence is mixed and inconclusive.
Cockrell said BATSA accepted it was a "complex matter".
However, for the purposes of the case at hand, he said it was critical to establish whether there was an association between smoking and more severe cases of Covid-19; and secondly, whether stopping smoking during the pandemic will reverse or lessen the disease progression of Covid 19.
The court should focus on this "narrower question", he argued.
Medical experts note the damage from smoking results from long-term smoking, said Cockrell, adding that the minister had not demonstrated that the susceptibility to a more severe form of Covid-19 would be reversed if a person were to temporarily stop smoking during lockdown, as the damage would arguably already have been done.
Tobacco farmers are represented in the matter in the matter by Saai, an agricultural interest network for individual farmers.
"As the representatives of tobacco farmers, we contend that regulation 45 of the Disaster Management Act deprives tobacco farmers of their right to choose a trade, occupation or profession in terms of Section 22 of the Constitution of South Africa," says Francois Rossouw, CEO of Saai.
"Although the minister says the regulations are temporary and that trade will be resumed in future, she by no means gives any indication when this will happen. Meanwhile farmers have no means to keep their operations going or any timetable to plan for their future."
The case is set to continue on Thursday 6 August.