1 July 2020 by and Dispute Resolution Alert

A discussion of the recent High Court judgment confirming the validity of the tobacco ban under the Disaster Management Act 57 of 2002 and Regulations

On 26 June 2020, the Gauteng Division of the High Court, Pretoria, dismissed an application brought by the Fair-Trade Independent Tobacco Association (FITA) challenging the validity of the regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs (the Minister) pursuant to section 27(2) of the Disaster management Act 57 of 2002, which prohibits the sale of tobacco products as part of the measures introduced to curb the escalation of the COVID-19 virus. This effectively means that the buying and selling of tobacco and related products remain prohibited in South Africa.

The crux of the challenge by FITA was that there is no rational basis for the Minister’s decision to outlaw the sale of tobacco products. In other words, FITA contended that banning the sale of cigarettes and tobacco products bears no rational connection to curbing the spread of the COVID-19 virus. The court therefore had to consider whether there was a rational connection between the purpose of containing the spread of the virus, and the means chosen, being the ban on the sale of tobacco products.

The Minister based her decision of banning tobacco products on the need “to protect human life and health and to reduce the potential strain on the health care system”. This decision largely revolved around South Africa’s weak healthcare system, which has a shortfall of essential healthcare resources such as ventilators and ICU facilities. South Africa’s healthcare system reportedly has less than half the ventilators that the Health Department estimates will be needed to treat patients at the peak of the COVID-19 pandemic. Therefore, the Minister contended that this places a duty upon her to take measures that would prevent an unnecessary strain on South Africa’s healthcare facilities, in order to ensure that COVID-19 patients have access to such facilities when the need arises.

The medical literature consulted by the Minister showed that the use of tobacco products increases not only the risk of transmission of COVID-19, but also the risk of developing a more severe form of the disease. It therefore had to be determined whether such evidence considered by the Minister provided a rational basis for the prohibition.

The court was of the view that “a vigorous attempt to contain the spread of the virus at all costs had to be made, especially bearing in mind the high COVID-19 mortality rates and the fact that, as a developing country with limited resources, South Africa is ill-equipped to survive the full brunt of the pandemic at its peak if no concerted efforts are made to contain the virus.

It was therefore held that the evidence and material considered by the Minister to arrive at her decision, provided her with a rational basis to outlaw the sale of tobacco products, and that this was a rational decision “intended to assist the State in complying with its responsibilities of protecting lives and thus curbing the spread of the COVID-19 virus and preventing a strain on the country’s healthcare facilities.

The court further rejected FITA’s argument that the ban had the effect of encouraging trade in illicit cigarettes rather than the intended effect of preventing smoking. It reiterated that the objective of the Minister’s decision was not to stop every smoker from continuing with smoking, but to alleviate the “potential devastating burden on the already constrained healthcare system”.

The argument that cigarettes ought to be deemed essential goods because they are addictive was rejected on the basis that cigarettes and related tobacco products do not fall into the same category as goods which are “life sustaining or necessary for basic functionality.” The court held that a substance being addictive does not necessarily mean that it is essential.

The application was dismissed with costs. The buying and selling of cigarettes and tobacco products therefore remains banned in South Africa. Meanwhile, British American Tobacco South Africa has also filed papers challenging the ban on cigarettes and other tobacco products, a case due to be heard in August in the Western Cape High Court. This judgment has been received with mixed reactions and an application for leave to appeal was due to be heard on 30 June 2020.

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