The Western Cape High Court will decide without delay whether to grant the government leave to appeal its December ruling that found last year’s ban on tobacco sales unconstitutional and invalid, Judge Tandazwa Ndita said on Monday after hearing arguments in the matter.
In an hour-long virtual hearing, legal counsel for Co-operative Governance Minister Nkosazana Dlamini-Zuma, the sponsor of the 143-day prohibition, submitted that the court had erred on 12 counts when it found in favour of British American Tobacco SA (Batsa).
Much of Monday’s argument as to the merit of the application turns on the fact that two different high court divisions have reached different conclusions on the validity of perhaps the most debated restriction imposed in response to the Covid-19 pandemic.
The December 11 ruling in the Western Cape was a resounding victory for Batsa. It came four months after the ban was lifted and six months after the rival Fair Trade Independent Tobacco Association (Fita) unsuccessfully challenged the measure in the Pretoria high court.
The court found that the minister had exceeded her powers, in part because she failed to prove that it was necessary to achieve her aim of reducing the burden on the health system.
In the Fita ruling on June 26, the Pretoria high court had favoured the minister with a broad interpretation of the necessity test in section 27 (2) (n) of the Disaster Management Act, finding that the ban was a rational measure, imposed at a time of crisis and that therefore she had cleared this threshold.
Advocate Marumo Moerane, for Dlamini-Zuma, on Monday argued that the earlier ruling was correct and that the Cape division was bound to it by precedent.
But Batsa had ventured where Fita did not by attacking the ban’s constitutionality, gazetted as regulation 45 under lockdown alert level 3.
This allowed it to contend, successfully, that the court could not only differ from the Gauteng judgment if it found it to be substantially erroneous because the earlier ruling did not provide authority on the broader legal issues raised.
The court agreed that the ban did not withstand constitutional scrutiny. The minister’s medical evidence did not justify the intrusion on the rights to dignity, privacy and physical integrity of smokers and those in the tobacco industry to choose their trade.