The government has maintained in court that Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, acted legally and rationally in banning the sale of cigarettes and tobacco products under the nationwide lockdown, saying the Disaster Management Act affords the minister broad powers to safeguard the health of SA citizens.
The case, brought by the Fair Trade Independent Tobacco Association, was argued before three judges in the Pretoria High Court on Wednesday morning.
FITA, whose members include cigarette makers Carnilinx and Gold Leaf Tobacco, is challenging the cigarette ban for a number of reasons, saying the minister overstepped her authority in declaring the ban, and that it in any case been unsuccessful in significantly reducing the sales of cigarettes or in getting smokers to quit.
The tobacco's group lawyer, Advocate Arnold Subel SC, put it to the court that current medical evidence does not support the state's assertion that smoking likely leads to more severe cases of Covid-19, saying peer reviewed medical studies on this were still lacking.
Instead of decreasing smoking, he said the ban – which he at one stage described as a "sledgehammer to beat people into submission" – would only increase mistrust between citizens and the state.
The state, represented by Marumo Moerane SC, told the court that the cigarette ban was both legal and rational, and denied that Minister Dlamini-Zuma had acted against the wishes of President Cyril Ramaphosa or the National Coronavirus Command Council.
Moerane said that emerging medical evidence supported the state's case that smoking leads to more severe cases of Covid-19.
"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", he said.
Subel, meanwhile, said that at the moment neither "this court, and not even a scientist" can determine whether there is an answer about the link between smoking and severe cases of Covid-19 as the evidence is still inconclusive.
Moerane said that under the Disaster Management Act, the minister did not have to have "absolute certainty" that unless she instituted a smoking ban the country's health system will collapse. Rather, he said the test should be whether the regulations are "reasonably required".
In light of statements by the World Health Organisation – which has said a review of studies by public health experts found that smokers "are more likely to develop severe disease with Covid-19, compared to non-smokers and others", the minister had passed this test.
He added that if the minister were to wait for "definitive proof" of links between more severe Covid-19 infections and smoking, she would be in breach of her obligations.
Judgement has been reserved.