Government has formally indicated that it will oppose a far-reaching court challenge to the lockdown cigarette sales ban – and has also made it clear that it will not hand over minutes of the National Coronavirus Command Council (NCCC) discussions regarding the ban because they are "classified".
The Presidency has confirmed to News24 that cigarette companies are now allowed to manufacture and export tobacco products to other countries – but appear to be adamant that the ban on local sales must remain in place.
"Manufacture and export of cigarettes is already allowed in the regulations and not tailored for any company," Presidency spokesperson Khusela Diko told News24.
"Government's overriding objective is to save lives by enhancing adherence to the lockdown regulations. We are not making any morality judgements on cigarettes, hence manufacture and export is allowed as part of resumption of economic activity".
The Fair Trade Independent Tobacco Association (FITA) launched an urgent legal challenge to the ban earlier this week, in which the organisation – which counts cigarette trader Adriano Mazzotti as one of its founder members – demanded that the NCCC be ordered to provide minutes of its cigarette ban discussions.
FITA wants the minutes of the NCCC meeting that led to President Cyril Ramaphosa's announcement that cigarette sales under the Level 4 lockdown would be allowed; as well as the minutes of the meeting that followed that announcement, which led to Cooperative Governance Minister Nkosazana Dlamini-Zuma's announcement that the NCCC had changed its mind.
FITA, which threatened litigation against the state prior to the president's announcement that the sale of cigarettes would be unbanned, argues that Ramaphosa created a "legitimate expectation" that cigarettes would be sold.
It is crucial, FITA contends, that the NCCC account for the thinking that led to these announcements being made and later retracted. The association reveals in court papers that it has twice sought an explanation from the government about the NCCC's stance on cigarette sales, but has yet to receive one.
But, in response to questions from News24, Diko said that Ramaphosa and Dlamini-Zuma would not hand over NCCC minutes about the cigarette ban discussions because the NCCC is "a coordinating structure of Cabinet so they (the minutes) are classified".
The government is expected to file a response to FITA's application by close of business on Friday.
British American Tobacco announced on Wednesday that it had decided not to pursue legal action against the state over the tobacco ban "at this stage" and instead elected to "pursue further discussions with government on the formulation and application of the regulations under the Covid-19 lockdown".
While News24 received information that BAT's decision may have been influenced by an alleged SARS raid on its premises last week, BAT denied that any such raid had taken place.
The raid was mentioned by SARS commissioner Edward Kieswetter during his presentation to Parliament this week, but he did not name BAT as the target of the operation.
"SARS officials inspected our production plans and export declarations at the factory and were happy with this information and the transparency in our documentation," BAT stated.
"These are regular visits and not unusual, and have been happening before the lockdown. In fact, just before the lockdown, we inquired whether SARS could not stay throughout the lockdown period at all factories to ensure compliance".
While the government prepares to face the cigarette ban case launched against it by FITA, it also faces the possibility of a legal challenge to the constitutionality of the NCCC itself.
Advocates Nazeer Cassim SC and Erin-Dianne Richards wrote to the government expressing concern about "about possible risks of constitutional and democratic malfunctions arising from what appears to be the questionable establishment, structure and functions of the NCCC, as well as the noticeable lack of transparency from government about the body".
In response, Secretary of Cabinet Cassius Lubisi stressed that, while the NCCC was constitutionally established, Cassim and Richards should "constructively propose alternatives rather than threaten us with litigation".
"Their insistence on putting in jeopardy all measures taken to save South African lives and ensure security of public health is not commensurate in our respectful view with their position as officers of the court," he stated in a letter to the lawyers representing the pair.
Cassim responded to this letter in an email to Lubisi, saying he hoped he had the dignity to retract his personal attack on Cassim, Richards and RHK Attorneys. It remains unclear, at this point, whether they will mount a constitutional challenge to the NCCC.
What is clear is that the FITA application, should it proceed, will require Ramaphosa and Dlamini-Zuma to provide some form of explanation for how the NCCC reached its wavering decisions on the cigarette ban – and to provide evidence to refute accusations that it was exercising its considerable powers unreasonably and irrationally when it did so.