State requests more time to defend cigarette ban in court

Cigarettes for sale in Johannesburg in May during the lockdown. (Photo by Gallo Images/Papi Morake)
Cigarettes for sale in Johannesburg in May during the lockdown. (Photo by Gallo Images/Papi Morake)

The government is feeling the pressure of having to defend two separate cases relating to its ban on the sale of cigarettes and tobacco products during lockdown, and has requested a postponement in the first case which was set to be heard next week. 

State attorney Arista Wasserman has written to Judge President Dunstan Mlambo of Gauteng to request that the initial hearing in the challenge against the ban being brought by the Fair Trade Tobacco Association be postponed, in light of the pressures facing Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, including the national state of disaster.

FITA, whose members include Carnilinx and Gold Leaf Tobacco, launched their court bid in May  to have the sale of cigarette and tobacco products reauthorised.

The state banned the sale of tobacco at the start of the nationwide lockdown in late March, citing health reasons. The ban was extended under Level 4 and again under Level 3 of the lockdown. In defending the ban, the government has argued that emerging research shows smoking leads to more severe cases of Covid-19, and the ban is necessary to reduce strain on SA's health system.

The country's largest cigarette manufacturer British American Tobacco South Africa last week lodged a separate legal challenge against the ban.  According to BATSA, the ban has cost it between R300 million and R350 million in lost revenues per week. It estimates that about R2.4 billion has been lost in tax revenue during the first eight weeks of lockdown.

The state now has to prepare to defend the ban against two separate cases, as well as an interlocutory application from Smokers Unite One, which falls under the FITA case.

"It is simply practically impossible for the reasons and the record to be properly prepared before 3 June 2020 and incorporated into the Minister’s answering affidavit in the FITA matter, especially given the pressures under which the Minister is placed in managing the national state of disaster," said Wasserman, who pleaded for more time. 

"We repeat the importance of the matter to the parties and the significant public importance and trust that the JP will consider the requests made on behalf of our client as soon as possible. The matter also raises complex issues of public policy, including public health policy," Wasserman said.

FITA's attorneys have written to the judge president opposing the request for postponement.

Ryan Merrifield of Morgan Law Attorneys representing FITA, said government had not brought a "substantive application" for postponement. "On this basis alone, we submit, the request should be denied," Merrifield said.

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