Tobacco sales ban was unconstitutional and unnecessary, court finds

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The Western Cape High Court has ruled that the tobacco ban "cannot and does not withstand constitutional scrutiny".  (Getty)
The Western Cape High Court has ruled that the tobacco ban "cannot and does not withstand constitutional scrutiny". (Getty)

The Western Cape High Court has ruled that the tobacco sales ban during the country's hard lockdown was not necessary or consistent with the South African Constitution.

Tobacco giant, the British American Tobacco South Africa (BATSA) took the Department of Cooperative Governance and Traditional Affairs (Cogta) to Court in May over the ban of tobacco product sales. Although the ban was lifted at the end of August, its arguments had already been heard by the Court which reserved its judgment until now.

In the ruling that was made on Friday, the three Western Cape High Court judges, who presided over the case, said Regulation 45, which Cogta Minister Nkosazana Dlamini-Zuma relied upon to effect the ban "cannot and does not withstand constitutional scrutiny".

"Likewise, we have found Regulation 45 to be neither necessary, nor can it be said it furthers the objectives set out in section 27 (2) of the Act," read the judgment.

Regulation 45 stated that "the sale of tobacco, tobacco products, e-cigarettes and related products is prohibited, except for export" to curb the spread of the Covid-19. Section 27(2) specifically empowered the minister to make regulations concerning the movement of persons and goods.

In court, government had argued that the ban was aimed at reducing the occupation of intensive care unit (ICU) beds by smokers. If people didn't smoke they would likely not get Covid-19 in a more severe form, it argued. But BATSA maintained that government had not justified the ban in law or science.

The judges agreed with BATSA but acknowledged that government was faced with a novel virus which necessitated urgent implementation of measures to curb its spread. And for this reason, the court exempted government from paying BATSA's costs.

"The respondents were under both a constitutional and moral obligation to act swiftly at a time when very little was known about the Covid-19 pandemic…To mulct them with costs would, in any circumstances be unjustified," read the judgment.

In a statement issued on Saturday, BATSA said that its view that the tobacco sales ban was "unjustified and unconstitutional" had been vindicated by the high court ruling. "The five-month ban on tobacco and vapour products sales was ill-considered, unlawful and has worsened the illicit trade in cigarettes and vapour products in the country," the statement read.

It reiterated previous calls for the SA government to urgently ratify the World Health Organistaion (WHO) Illicit Trade Protocol - which would help eradicate the illegal sale of cigarettes. "This is the only way for the country to claw back tax losses resulting from the explosion in illicit trade that occurred during the ban on tobacco and vapour products," it said.

*The article was updated at 11:20 on Saturday, 12 December 2020, to include comment from BATSA.

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