British American Tobacco (Batsa) has raised questions around the scientific studies being used by the government as a basis to continue its ban on the sale of tobacco products.
The group has brought a case against Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini-Zuma, President Cyril Ramaphosa and the National Coronavirus Command Council (NCCC) in which it arguing that the prohibition on the sale of cigarettes and other tobacco products is unlawful and unconstitutional.
In court documents filed last week, the group noted that part of Dlamini-Zuma’s argument for the ban relies on scientific studies which show that smoking may increase the risk of transmission of Covid-19.
However, Batsa argues that these studies are not conclusive and are often contradictory. It specifically draws attention to one study relied on by Dlamini-Zuma which shows that:
- The scientific literature does not support the claim that there is an increased risk of Covid-19 infection among smokers;
- There is consistent evidence from a number of studies suggesting that current smokers have a lower risk of infection and of developing Covid-19 at a level of severity that requires hospitalisation;
- The current scientific evidence does not demonstrate that the severity of Covid-19 outcomes is greater in current smokers than non-smokers;
- It is not yet clear why there is this apparent lower level of hospitalisation for smokers, but it remains the case that high levels of smokers are not being seen amongst patients that are hospitalised with Covid-19.
“The minister was therefore correct to concede in her answering affidavit that the scientific literature is not ‘absolutely conclusive’ when it comes to establishing a link between smoking and the risk of contracting a more serious form of Covid-19,” Batsa said.
“But that concession is fatal to the minister’s case: once the concession is made, it cannot be said that it is necessary to prohibit the sale of tobacco and vaping products in order to prevent smokers from contracting a more severe form of Covid-19.
“It is not enough for the minister to establish that prohibiting smoking may assist in combating Covid-19; it has to be necessary to do so.”
Batsa is also arguing that section 10 of the constitution provides that ‘everyone has the right to inherent dignity’ which extends to autonomy and the ability to make their own choices.
The group said that the ban violates the right to privacy, the right to bodily and psychological integrity, and the rights of tobacconists and tobacco farmers to practice their trade.
Batsa has also questioned the reasons given by Dlamini-Zuma for the ban, including the ‘health risks’ associated with smoking and Covid-19.
“We submit that the minister’s justification is – to use a metaphor that is particularly apposite here – an exercise in smoke and mirrors,” the group said in its court papers.
“Even if a series of assumptions were to be made in favour of the minister regarding the health risks of smoking in relation to Covid-19, the ‘benefits’ on which the minister relies would still be heavily outweighed by the harm caused by the prohibition.
“We shall show that, on the minister’s own version, the public-health ‘benefits’ are miniscule when weighed against the massive harm caused to smokers, to participants in the tobacco supply chain, and to the fiscus.”
The sale of tobacco products, including cigarettes, has been prohibited since the country first introduced a lockdown at the end of March.
The ban has been in place to protect the health of South Africans, according to submissions from the government, and cigarette producers have failed to convince the country’s courts that the sale of tobacco products is a necessity.
Ramaphosa has insisted that the prohibition is not a ‘ban’ but rather a suspension that will be ‘resolved’ as the country moves to a lower alert level.
Research has shown that the ban on tobacco sales has failed to stop people from smoking, while pushing all trade into the illicit market – which has effectively blossomed, robbing the state of its due through taxes.