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WRAP | State argues medical literature supports view smokers are more at risk from Covid-19

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10 June 14:45

The three judges Mlambo, Basson & Molefe will now retire to consider their decision. 

The judgement will be emailed to the parties. 

 

10 June 14:40

Subel contends that more peer-reviewed studies would have to be done to support the view that smokers are more likely to contract severe cases of Covid-19, as the current evidence is inconclusive. 

The state, meanwhile, is basing its arguments, in part, on statements made by the World Health Organisation.

In a statement on May 11, the WHO states: "A review of studies by public health experts convened by WHO on 29 April 2020 found that smokers are more likely to develop severe disease with COVID-19, compared to non-smokers."

With that Subel ends his arguments. 

WHO statement: Tobacco use and COVID-19

10 June 14:35

Quoting from a medical expert that supports FITA's view, Subel notes that China has 300 million smokers, but its ICU admissions have not been swamped by severe Covid-19 cases of smokers. 

10 June 14:25

Subel, for FITA, argues that evidence does not bear out the state's claim that a reasonable amount of people have stopped smoking as a result of the ban. 

He puts it to the court that while some people may have initially quit, this would not be sustained. In addition, an initial decrease in cigarette sales when the ban was first announced may be attributed to the fact that people stocked up on cigarettes before the ban went into effect.  

10 June 14:22

Stubel argues it is not sufficient for the state to argue that the tobacco sales ban will be somewhat effective - even while acknowledging that some people will continue smoking. 

"That can't withstand analysis on any basis," he says. 

10 June 14:15

Moerane has wrapped up his arguments, and it is now up to Advocate Arnold Subel SC, for FITA, to reply. 

He says FITA disagrees that the regulation be referred back to the minister for reconsideration if the court finds against her.

 

10 June 14:14

Moerane appears to be nearing the end of his arguments. He says that if the court, for any reason, finds against the minister - it should first let her remedy the regulation banning smoking, rather than suspending it outright. 

As such, the public health gains over the past few months would not be undone, he adds. 


10 June 14:07

Moerane now addresses the fact that President Cyril Ramaphosa, in April, announced that the cigarette ban would come to an end during Level 4, only for Minister Dlamini-Zuma to six days later announce the ban would remain in place. 

He says after the president made his initial announcement, the matter was again looked at by the National Coronavirus Command Council in light of submissions received and medical evidence. 

"A different position was ultimately adopted," he says.

Moerane says attempts to paint Minister Dlamini-Zuma as having overturned the president's decision are "not rooted in fact". 

10 June 13:56

Moerane, for the state, argues there is no requirement for the minister has to consult with the public before making regulations. But even if there were such a requirement, she did, in fact, call for submissions for the public. 

He adds that FITA did make submissions concerning the sale of cigarettes and that the tobacco group appears to be arguing that its submissions appear not to have been given sufficient weight.  

10 June 13:53

Relying again on reports produced by the HSRC and UCT, Marumo says the ban on smoking has been successful in both reducing access to cigarettes and in getting smokers to quit. 

10 June 13:50

Moerane tells the court that the benefits of smoking are immediate. 

10 June 13:49

The court is back in session, with Marumo Moerane SC, for the state, continuing to set out the state's case behind the ban. 

10 June 13:42

The court has now adjourned. 

10 June 13:42

Moerane reiterates the state does not expect a total reduction in sales, but a "significant reduction". 

Asked by the judge about the illicit cigarette trade, he replies that studies support the view that the ban has reduced smoking rates, and therefore the ban is rational. 

10 June 13:31

Moerane is asked by a judge why only the sale of cigarettes was prohibited, and not smoking.

She notes that some smokers may have stocked up on cigarettes, while others may buy them on the illicit market. 

In response, Moerane says the purpose of the ban was to decrease the availability of cigarettes. 

While the ban "cannot totally restrict the availability of cigarettes," it has reduced access to cigarettes - and as such has reduced smoking, he says. He says studies have confirmed this. 

10 June 13:22

"According to the opinions of those more qualified than FITA or lawyers, the evidence is clear that smokers are at heightened risk of developing a more severe form of Covid-19", says Moerane.

He says while FITA says the evidence here is inconclusive, this is not correct. 

"Rather what is said is that the emerging medical literature indicates that smokers are more likely to develop a more severe form of Covid-19," he says. 

This, he says, is the view the minister has taken from the relevant literature.  

10 June 13:18

Moerane now moves to the question about "substantive rationality" behind the argument to ban cigarette products - noting that many of its arguments have already been included in the heads of argument that the state has submitted. 

(As a result, the sum total of the state and FITA's cases will not be explicitly set out in court today).

10 June 13:09

He reiterates that, in the state's view, the bar the minister has to meet in making regulations is not 'absolute certainty' that unless the measure in question is imposed the health system will collapse.

He says that if the minister were to wait for such "definitive proof" she would be in breach of her obligations. 

"To read the provisions in this manner would render them unconstitutional," says Moerane. 

10 June 12:57

"We submit that the powers are board," says Moerane, in situations where decisions need to be taken quickly. 

He notes that the minister has been tasked to make sure the pandemic does not overwhelm the state's health system. 

The state has a duty to take steps to prevent the spread of the disease, he adds. 

10 June 12:56

Moerane notes that the national executive has been given broad discretion to deal with natural disasters. 

10 June 12:48

Moerane, for the state, says regulations promulgated by the minister under the Disaster Management Act do not have to meet the test of "absolute necessity". 

Rather, the test should be whether the regulations are "reasonably required".

This relates to questions around the applicable test for passing the regulations. 

10 June 12:43

Moerane submits that FITA's argument, that the minister can only ban the sale of alcohol under the Disaster Management Act, is incorrect.

He says it would have been impossible for the legislature to predict every item that may have to be banned under given situations and therefore provided the minister with leeway to prohibit the sales of other classes of goods. 

 

10 June 12:38

Moerane says the minister's task was complex - she needed to strike a balance to protect the public from the effects of the pandemic. 

As background he notes that the FITA challenge is not a constitutional challenge. 

10 June 12:33

The lawyer for the state, Advocate Marumo Moerane SC, opens his argument by saying that responses to Covid-19 need to be proactive and swift.

"We don't have the luxury of having inquiries that will take time and consume resources of the state

"Actions have to be taken on the basis of what is known," he says. The state needs to be guided b what "science tells us is probable". 


10 June 12:26

Subel has wrapped up his evidence for FITA.

The state will now present its arguments. 

 

10 June 12:21

Subel says the way that the cigarette ban was handled was secretive, says such bans need "buy in" and "support". 

He again adds that the illicit and unregulated cigarette industry is blossoming. 

Dictating to them what they "will or won't do", he says, is counterproductive. 

10 June 12:13

Stubel, for FITA, says it is undesirable to criminalises selling cigarettes "through delegated authority". 

"One thing you take into account - those who are addicted and suffer medical conditions... should they now be convicted and sentenced up to six months and or a fine - for participating in the sale of this product?" 

He again adds the reasons for the ban is "weak".

10 June 12:08

"Anybody who would have been in favour of the ban being lifted would ... not have thought it necessary to put in representations," says Stubel. 

10 June 12:07

Subel now moves to the announcement by President Cyril Ramaphosa, in late April, that the cigarette sales ban would be lifted. 

Ramaphosa, in a televised address on April 23, initially approved the sale of tobacco products under Level 4. Six days after Ramaphosa made his announcement, Dlamini-Zuma announced that the sale of tobacco products would not be allowed.

She said at the time there was nothing "sinister" behind the renewed ban. 

Subel contends that Dlamini-Zuma did not make it sufficiently clear that people should submit their views if they agreed with the ban being lifted.  

Nothing sinister' behind renewed cigarette ban, says Dlamini-Zuma ahead of court case

10 June 12:00

Proceedings have resumed in the Pretoria High Court, with Advocate Arnold Subel SC, continuing FITA's case challenging the tobacco ban. 

10 June 11:39

The case now moves on to why the president has not deposed an affidavit. 

Subel says it needs to be explained why the president previously announced that the ban on cigarettes would be lifted. This was later overturned. 

Subel says it "cries out for an explanation". 

"He is the person that should be justifying why he said what". 

The court is now taking a break. 

10 June 11:37

A judge now poses a question to Subel that the state set out in its heads of argument. Dlamini-Zuma said that, given SA has between 8 and 11 million smokers, if 1% of them were to need to be admitted into ICU this would overwhelm SA's health system. 

Subel, for FITA, replies that the argument is unreliable. 

"You won't have 1% all in the ICU at the same time," he says, he adds that of that 1% many others would have comorbidities, implying they would anyway be admitted to hospital. 

10 June 11:29

Subel says the ban is a "sledgehammer to beat people into submissions," an "act of cruelty".

He adds that none of the reasons put forward by the minister pass "rational muster," adds that stopping smoking seems to have become an "obsession". 

10 June 11:27

Subel argues that there is no realistic prospect of either stopping smoking or cutting supply during the nationwide lockdown. 

"Times are stressful enough under lockdown," he says, saying "many million" have to contend with the ban. 

He adds that 600 000 people signed a petition arguing against banning cigarettes - saying they were "ignored" by the state, while emphasis was placed on "a few hundred" submissions that supported the ban. 

10 June 11:21

"The argument that by banning sales you were going to stop smoking is a non-sequitur," says Subel for FITA. 

Subel says illicit trade will always continue "as we have seen from history". 

"If people continue smoking, what does the ban achieve?" he asks. 

10 June 11:12

Subel, for FITA, now moves on to studies or surveys purporting to show that the lockdown decreased demand for cigarettes, which were quoted by the state in its filings. 

He says FITA has asked for data about who was interviewed - but says it was not provided by the state's legal team.

He now says that a survey relied on by the state was an "unreliable exercise".  

10 June 11:08

A judge questions Subel about one of his previous claims that studies around the impact of smoking on Covid-19 are inconclusive. 

If the disease is so new, how can he expect studies to be conclusive? 

In reply, he says that if you "don't know" then cigarettes cannot be banned. 

 

10 June 11:05

Subel says that only South Africa and Botswana have banned the sale of cigarettes - this appears to contradict previous assertions by Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, that SA's ban was in line with global trends. 

10 June 11:03

Subel argues that the ban on cigarettes has had a negative impact on the "poorest of the poor" as they have to buy cigarettes at black market prices. 

10 June 11:00

FITA says that the unbanning of alcohol will have a far greater impact on SA's health services than cigarettes. 

Subel questions how cigarettes can remain prohibited, while alcohol is on sale again. 

10 June 10:54

Quoting a doctor, Subel says that tobacco withdrawal is a 'diagnosable medical condition'. 

He says it is arrogant of Dlamini-Zuma to contend that people can give up smoking in a couple of days and "get over it". 

He adds that quitting smoking needs to be treated with the seriousness it deserves. 

10 June 10:50

Subel, for FITA, now adds that the tobacco group believes that the sale of cigarettes was, in fact, permissible under the initial lockdown regulations, and was only made expressly illegal under subsequent regulations. 

He says that cigarettes and tobacco products are 'basic goods'. 

How this argument will impact the rest of FITA's case remains to be seen. 

 

10 June 10:44

Subel admits that while it "may be" that smoking increases the severity of Covid-19 - the FITA legal team has not been provided with evidence. 

He says FITA nees to see the documentary support for the studies that grounded the state's case. 

10 June 10:41

Subel contends that the crux of the case will be whether it was strictly necessary to prohibit the ban of cigarettes for health reasons.

This is related to arguments made by the state that evidence suggests smoking causes more severe cases of Covid-19, which would in turn increase hospitalisations.  

Subel says that at the moment neither "this court, and not even a scientist" can determine whether there is an answer as evidence is not conclusive. 

10 June 10:34

Subel, for FITA, says health concerns must be addressed through laws, not the Disaster Management Act. 

He adds that uncontrolled and harmful illicit cigarettes sales are now proliferating. He continues to say these may be "even more addictive" than legal cigarettes because of unknown additions.   

10 June 10:28

Subel now says the real danger now that may increase the burden on the SA health system is smokers being driven to buy illicit products. 

"It's now an unregulated world," he says. 

10 June 10:26

Subel argues that the 'agenda' of the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, is to get people to quit smoking. 

He adds that FITA is not arguing that smoking is not harmful, but says the debate at hand is the connection between the Disaster Management Act and the prohibition of the sale of cigarettes. 

10 June 10:20

Subel says the ban on the buying and selling of cigarettes is 'draconian' and has caused 'enormous harm'

10 June 10:16

The case has started in the Pretoria High Court, with Advocate Arnold Subel SC, setting out the broad parameters of FITA's case. 

10 June 10:15

Ten weeks after the sale of cigarettes and tobacco products was banned under the nationwide lockdown, the first court case challenging the ban is set to start at the Pretoria High Court on Wednesday morning. 

The case is being brought by the Fair Trade Independent Tobacco Association, whose members include cigarette makers Carnilinx and Gold Leaf Tobacco.

The association is set to argue that that Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, overstepped her powers in banning the sale of cigarettes, arguing she does not have the authority to pick and choose what items can be banned as a precautionary measure. 

The state, meanwhile, has argued that a sales ban was needed in light of what it says it strong emerging evidence that smoking leads to more severe cases of Covid-19, and the prohibition is necessary to reduce strain on SA's health system.

Tobacco group to argue Dlamini-Zuma overstepped powers in banning sales of cigarettes
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