South Africa’s cigarette sales ban decision is wrong on two fronts: court case

The Southern African Agri Initiative (Saai) says that the government’s decision to ban tobacco sales has directly led to job losses.

The group is representing the rights of tobacco farmers in the matter of British American Tobacco South Africa (Batsa) and nine others against the government in the Western Cape High Court.

The Saai said that sale of tobacco products is being challenged on two fronts: constitutionally and administratively, with both of these issue being presented by Batsa who represents all applicants from the entire value chain.

Constitutional issues

“As the representatives of tobacco farmers we contend that Regulation 45 of the Disaster Management Act deprives tobacco farmers of their right to choose a trade, occupation or profession in terms of Section 22 of the Constitution of South Africa,” said Francois Rossouw, chief executive of Saai.

He noted that the economic damage for tobacco farmers is immense as tobacco farmers have no buyers for their product and it is not feasible to only rely on exports.

In its court papers, Batsa said 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.

In addition to the rights of tobacconists and tobacco farmers to practice their trade, the group said that the ban violates the right to privacy, the right to bodily and psychological integrity,

Administrative and other issues

Rossouw added that the estimated loss of excise duty to the fiscus is approximately R35 million per day.

“Although the minister says the regulations are temporary and that trade will be resumed in future, she by no means gives any indication when this will happen. Meanwhile farmers have no means to keep their operations going or any timetable to plan for their future.

“The purpose of the lockdown regulations should be to limit the spread of Covid-19 and to relieve the effects thereof. The data just does not support the view that banning the sale of tobacco will make a significant impact to achieve these goals,” said Rossouw.

Batsa 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, the group is arguing that these studies are not conclusive and are often contradictory.

The case is currently being heard in the Western Cape High Court.

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.

President Cyril 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.

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