The Gauteng High Court, Pretoria, has reserved judgment in the application by the Fair Trade Tobacco Associations (Fita) for leave to appeal against the earlier judgment which endorsed the government's ban on the sale of tobacco during the lockdown.
Fita asked for leave to appeal to the Supreme Court of Appeal in Bloemfontein. They argued there were reasonable prospects that the Appeal Court would come to a different finding than that of the high court.
Arguing on behalf of the tobacco association, advocate Arnold Stubel cited at least 10 grounds on which it claimed the court came to the wrong decision when it ruled against the lifting of selling cigarettes and related products.
Stubel said the issue was mainly whether Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma’s decision to enforce the ban was rational, which he submitted was not.
He said the matters raised are of enormous public interest and it embarks on uncharted legal issues. According to Stubel, not only the rights of smokers are at stake here but also the economic impact the ban on the sale of tobacco products have on our country.
“These are compelling reasons why the appeal court should have another look at these issues,” he said.
He added that while a similar matter is pending before the Western Cape High Court next month, this is the first and only matter in which a court has given a judgment on the issue, thus is it even more important that the matter is urgently reconsidered by the Appeal Court
“We don't have to convince this court that it was wrong in its findings. We must only prove that there are reasonable prospects on appeal,” he said.
While the government’s stance is that smokers will place a burden on the health resources needed to treat Covid-19 patients, Stubel said no credible evidence was submitted to prove this.
He argued the government had based their arguments on unsubstantiated health surveys and no link was proved that smokers would compromise the health system. Stubel said this scientific evidence relied on by government to prove its point was inconclusive and of a low quality.
Stubel argued that government can only place a ban on the sale of tobacco products if it can prove it is absolutely necessary to achieve the means of not placing a burden on the health system. He said there is no credible scientific data to prove this.
“We believe that the appeal court will find that the ban is not necessary to the objective of the means.”
Stubel said apart from some people who raised an objection to the lifting of the ban, there was no justification for the minister not to have lifted the ban. He said it was an insensitive and callous approach by the minister to say those who are addicted to nicotine should “simply get over it”.
In opposing the application, Advocate Marumo Moerane, on behalf of the government, argued the application was misconceived. He told the court Fita did not care so much about the smokers as it cared about their own pockets, which are being affected by the ban placed on the selling of tobacco products.
He also said this matter did not concern novel legal issues which needed the attention of the Appeal Court, but rather the decision of the minister to promulgate regulations, which she is entitled to do. There is no need for the minister under the circumstances to prove that her decisions are fair, he said.
“She considered all the facts before she came to her decision… The fact that a substance is addictive, does not make it essential,” he said.