South Africa's largest cigarette manufacturer, British American Tobacco SA, and others intend to oppose government's application for leave to appeal a recent High Court judgment which found the ban on tobacco during the country's hard lockdown last year was unnecessary.
Government announced on Tuesday that it had applied to the Supreme Court of Appeal for leave to appeal the judgement.
BATSA and other tobacco traders, including the Limpopo Tobacco Processors, SA Tobacco Transformation Alliance and Suider Afrika Agri Inisiatief, had turned to the High Court in August 2019 - before the ban was lifted - to challenge its legitimacy. Judgment in the case was reserved and delivered in December in BATSA's favour, with the court finding the ban was unconstitutional and unnecessary.
BATSA, which owns brands including Dunhill, Peter Stuyvesant and Lucky Strike, announced on Wednesday that it will also apply for leave to cross-appeal certain portions of the High Court judgment and related order to the Supreme Court of Appeal, including costs, but only if the SCA grants government's leave to appeal.
The state had argued last year that the ban on the buying and selling of tobacco and cigarettes during the first five months of the lockdown was necessary because smokers were more likely to get severe Covid-19 infections than non-smokers. This, the state argued, would put undue strain on SA's health system,.
BATSA's arguments, on the other hand, included that the ban would unintentionally give rise to an illicit trade in tobacco, and that any benefit achieved would be far outweighed by the damage caused economically.
The tobacco manufacturer said that, while it supported government's efforts to curb the spread of the coronavirus pandemic, it would like to see practical and enforceable solutions implemented.
In the view of government, however, there is a conflict between the Western Cape High Court judgment in favour of BATSA and aspects of a earlier judgment in the Gauteng High Court in Pretoria in June last year, in which the tobacco ban was challenged by the Fair-Trade Independent Tobacco Association (FITA).
The FITA case was dismissed on grounds that the court found tobacco products not to be essential goods to be for sale. Government also claims that the admission of certain expert evidence in favour of the BATSA case should not have been admitted.