Use money for NDZ's tobacco ban appeal to tackle illegal cigarette boom - BATSA

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British American Tobacco says it is not surprised that government has been granted leave to appeal a court ruling that the lockdown ban on tobacco sales was not necessary. Picture: iStock/ Zhang Rong
British American Tobacco says it is not surprised that government has been granted leave to appeal a court ruling that the lockdown ban on tobacco sales was not necessary. Picture: iStock/ Zhang Rong
  • British American Tobacco SA is confident that the Supreme Court of Appeal will uphold a Western Cape High Court decision in its favour.
  • The case related to the necessity of last year's lockdown bans on the sale of tobacco products.
  • Government claimed it was necessary in order to prevent an even greater demand for ICU beds during the pandemic.

British American Tobacco SA (BATSA) is "disappointed, but not surprised", that Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma has been granted leave to appeal the Western Cape High Court's ruling that the lockdown ban on tobacco sales was unconstitutional and invalid.

"BATSA and our nine co-applicants had a resounding success in December with a strong judgment delivered in our favour," BATSA general manager Johnny Moloto said in a statement on Tuesday. "Based on the strength of the High Court's findings, we are confident that the Supreme Court of Appeal [SCA] will uphold the Western Cape judgment and rule in our favour." 

Dlamini-Zuma was granted leave to appeal to the SCA to determine whether the word "necessary" - a requirement for Disaster Management Act regulations - means strictly necessary or reasonably necessary.

Dlamini-Zuma argued in the High Court case that smoking increases the risk of contracting Covid-19 in a more severe form, thus potentially leading to an increased demand for intensive care unit (ICU) beds, which were already in demand due to the pandemic. BATSA and its fellow applicants wanted to get clarity on the lawfulness of the ban, regardless whether it was subsequently lifted - which it has been - or not. It said at the time this was in case any future blanket tobacco sales bans might be considered by government.

In the view of BATSA, regardless of the outcome of the minister's appeal, the Western Cape High Court's rulings related to constitutional arguments by BATSA will still stand.

"The Western Cape Court ruled that the tobacco ban infringed the rights to privacy, dignity, bodily and psychological integrity, property and freedom to trade, and that those infringements were not reasonable or justified," states BATSA.

'Allocate resources to combat illicit cigarette trade'

"Despite our confidence in the success of our case, we think the government would be wiser allocating its resources to combating the illicit trade in cigarettes, which was fortified by the ban and is now running rampant across South Africa. By confronting the criminal tobacco manufacturers who now dominate the market they would, at least, return many needed billions to the fiscus at a crucial time."

Government hopes the SCA would clear up what it regards as conflicts between certain aspects of the successful BATSA case and an unsuccessful challenge by the Fair Trade Independent Tobacco Association (Fita) against the tobacco ban in the Gauteng High Court.

In its latest statement, BATSA also called on the SA government to immediately ratify the global Illicit Trade Protocol (ITP) and roll out a compliant tobacco track-and-trace system. In the view of BATSA, criminal cartels exploited the tobacco ban, further establishing distribution routes and supply lines, and "educating" South African smokers about purchasing illegal and untaxed cigarettes.

Fin24 reported on Sunday that cigarette lobby groups have called for BATSA to be investigated by authorities after a report allegedly linked the multinational to smuggling activity in Mali. The report by the Organised Crime and Corruption Reporting Project (OCCRP) claims that the global British American Tobacco (BAT) oversupplied Mali, knowing that its products, which were largely Dunhill cigarettes manufactured in South Africa, would fall in the hands of smugglers to make its way to north Africa.

A spokesperson of BAT told the OCCRP that the multinational was opposed to the illegal trade in tobacco, which was a "serious, highly organised crime". The spokesperson said that BAT has established anti-illicit trade teams operating at global and local levels and has robust policies and procedures in place to fight this issue.

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