The Fair Trade Independent Tobacco Association (FITA) says the high court ruling that effectively validated the government’s controversial coronavirus cigarette sales ban is riddled with legal and factual errors. It application for leave to appeal will be heard on July 15. File photo: Bhekihaya Mabaso/African News Agency(ANA) The Fair Trade Independent Tobacco Association (FITA) says the high court ruling that effectively validated the government’s controversial coronavirus cigarette sales ban is riddled with legal and factual errors. It application for leave to appeal will be heard on July 15. File photo: Bhekihaya Mabaso/African News Agency(ANA)
CAPE TOWN - The North Gauteng High Court on Thursday said it would hear the Fair-Trade Independent Tobacco Association's (FITA) application for leave to appeal the dismissal of its challenge to South Africa's ongoing ban on cigarette sales, next week.
The matter has been set down for July 15, FITA's chairman, Sinenhlanhla Mnguni, said.
On June 26, a full bench of the high court dismissed the challenge brought by the association against the ban, which was extended indefinitely by Cooperative Governance Minister Nkosazana Dlamini Zuma in April, with costs.
FITA has asked for urgent leave to appeal directly to the Supreme Court of Appeal and is challenging last month's ruling in full, including the cost order.
It believes that the court erred in its interpretation of the threshold of necessity in the Disaster Management Act in terms of which the government declared a state of disaster in response to the Covid-19 pandemic.
It should, FITA said in application papers, have found the test was whether something was "absolutely necessary".
The court also erred in its application of the rationality test, which goes towards whether imposing a ban on cigarette sales was rationally linked to the purpose for which the government promulgated regulations in terms of section 27 of the act.
The court held that rationality was not a particularly stringent test and it had been satisfied by Dlamini Zuma in her reasoning for prohibiting the sale of tobacco products.
"The question before the Court is rather, having regard to the evidence considered and relied on by the minister, could it be said that there is enough to conclude that the prohibition placed on the sale of tobacco products is justified?" the judges held.
"In our view the answer is clearly in the affirmative."
Lawyers for the minister argued that, based on the available scientific research, the government imposed the ban to prevent hospitals being overrun with smokers who presented with severe Covid-19 symptoms.
FITA disputed the scientific evidence and has done so again in its application for leave to appeal, but argued that to a large extent it was irrelevant because the rational foundation for the minister's actions fell away unless it was proven that people had stopped smoking en masse as a result of the prohibition on cigarettes.
"The court erred in not finding that the ban in the regulations is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time they will cease to be 'smokers'," the association said.
The ban is also being challenged by British American Tobacco SA. Their case will be heard in the Western Cape High Court in early August. It is estimated the ban has cost the fragile South African economy billions of rands a month and boosted the illegal cigarette trade.