Dlamini-Zuma and Fita settle court battle over South Africa’s cigarette ban – here are the conditions

The Fair-Trade Independent Tobacco Association (Fita) has reached a settlement agreement a with the state attorney acting on the behalf of president Cyril Ramaphosa and Cogta minister Nkosazana Dlamini-Zuma about the return of the country’s cigarette sales ban.

The settlement revolves around the dispute against the cigarette sales ban, which was lifted on 18 August after a five-month prohibition. The case was set to appear before the Supreme Court of Appeal.

In a statement on Wednesday (26 August), Fita said that the parties have agreed to settle the matter with the following conditions:

• If the minister of Cooperative Governance and Traditional Affairs (currently Dlamini Zuma) should seek to reinstate a temporary prohibition of the sale of tobacco and related products at any stage in the future, the minister will follow a public participation process;

• Any invitation to or announcement of a consultation process will be issued publicly. Fita and any other interested parties would then be free to participate in that process (this was not the case when the initial ban was implemented).

• Any future decision regarding the prohibition on the sale of tobacco and related products, if any, shall be taken in accordance with the law and the requirements of legality;

• Fita will withdraw its appeal and the parties will each pay their own costs in respect of the litigation in both the High Court and the Supreme Court of Appeal.

@fita_sa Statement 26 August 2020. pic.twitter.com/uSmizCHHJg

— FITA (@fita_sa) August 26, 2020

In court papers filed last week, government legal representatives said that Dlamini-Zuma cannot promise that she will not reinstate a ban on the sale of cigarettes and other tobacco products.

In a letter sent by the state attorney to Fita, the government said that Dlamini-Zuma cannot give an undertaking and agree to this condition as it limits the minister’s powers under the Disaster Management Act.

“This is not because they intend to reinstate the temporary prohibition at a later stage, but simply because agreeing to this condition would constitute an impermissible and unlawful fettering of the minister’s discretion conferred upon her in terms of the Disaster Management Act 57 of 2002.

“‘That said, the minister can, and does, undertake that any future decision regarding the sale of tobacco and tobacco products, if any, would be taken in accordance with the law and the requirements of legality.”

Dlamini-Zuma signed off the prohibition of tobacco sales, citing the dangers of Covid-19 as a respiratory disease.

“There was evidence coming from other countries showing that some smokers tend to have a more serious disease which means we will need more ICU beds and maybe more ventilators,” she said.

“On the other hand, the results of stopping smoking do show pretty quickly. Your respiratory tract does improve quickly and just your general well-being improves – that’s why it was prohibited temporarily.”

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