Legal challenge to tackle South Africa’s cigarette sales ban in court this week

British American Tobacco (Batsa) is set to challenge South Africa’s ban on the sale of tobacco products in the Western Cape High Court on Wednesday (5 August).

Batsa attorney Mike Evans told CapeTalk that the tobacco company’s case will focus on constitutional issues including the right to trade and the individual right to bodily integrity.

“(The ban) infringes the right to trade, which relates to the manufacturers. It relates to the right to property and the rights to individual consumers. They have the right to privacy, dignity, and bodily and psychological integrity as well,” he said.

“They’re allowed to smoke cannabis at home, but effectively they’re not allowed to smoke cigarettes because they can’t purchase them. We’re saying that those rights have been infringed by this ban.”

In court documents filed last week, the group argued 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.

Batsa has also 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 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.

Fita case

In a separate case, the Supreme Court of Appeal has issued a directive in favour of the Fair-Trade Independent Tobacco Association (Fita) to have its leave to appeal petition be processed on a more urgent basis.

Government is now set to respond to Fita’s appeal bid by Friday.

Fita previously challenged the ban on tobacco sales in the Pretoria High Court, but the court ultimately ruled in favour of the government. It is now seeking to appeal the decision.

In a ruling handed down on 26 June, the High Court said that Fita’s argument that tobacco products be considered ‘necessary’ due to the negative effects the ban was having on those dependent on the substance was without merit.

The court also noted that Fita’s case ignored the context in which the ban was put in place – an unprecedented global pandemic, which required swift response from the government.

Fita had argued that the ban on the sale of cigarettes was detrimental to both industry and individuals, and that it was premised on irrational reasoning.

Government, meanwhile, argued that the ban is in place to protect the health of South African citizens and would encourage addicts to quit.

It also argued that smoking could lead to an increase in coronavirus cases and even death. Fita said that this is not an issue that is limited to cigarettes.

Read: Covid-19 pyramid scheme exposed in South Africa

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Legal challenge to tackle South Africa’s cigarette sales ban in court this week