British American Tobacco South Africa (BAT SA) has decided not to take legal action against the government over the ongoing ban on cigarette sales.
In a statement on Wednesday, the company said it had received a formal response to the letter it sent to the National Command Council on 30 April.
It said, “Having considered the response from the government and noting President Cyril Ramaphosa’s public statement on Monday, May 4, as a business, we have taken the decision not to pursue legal action at this stage but, instead, to pursue further discussions with government on the formulation and application of the regulations under the COVID-19 lockdown.”
BAT SA had given Cooperative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini-Zuma, who by law is the Minister mandated to gazette national disaster regulations, until Monday to explain the legal basis for the ban or face court action.
In its letter, it described the ban as “bizarre and irregular” because it had the effect of intensifying the illicit sale of cigarettes and tobacco products.
The company reiterated this concern in its statement and cited SA Revenue Service (SARS) Commissioner Edward Kieswetter’s statement on Tuesday that the government was losing revenue to the illicit economy.
“Whilst BAT SA supports the government in its mission to prevent the further spread of the virus, we believe it is vital that there is a renewed and stronger effort under level 4 to permanently close down the illegal supply lines of tobacco that have been established over the past number of weeks. Reopening the legal, taxed and regulated tobacco market must be part of the solution,” it said.
FITA’s legal action
BAT SA, which controls about 78 percent of the local legal cigarette market, wasn’t the only group contemplating legal action against the government over the ban.
Earlier this week, the Fair Trade Independent Tobacco Association (FITA) filed urgent court papers in a bid to have the ban lifted. It cited both Ramaphosa and Dlamini-Zuma as respondents.
It argued that the ban under level 5 lockdown was “unlawful” because it was not gazetted then and that the government had not considered less “onerous” measures of achieving the lockdown’s purpose without undermining business rights.
FITA added that the ban “directly affects the freedoms previously enjoyed under law by approximately 11 million cigarette smokers and tobacco users in South Africa” as well as their physical and mental wellbeing.
The government has not yet responded to the court papers. In his newsletter to the nation on Monday, Ramaphosa said the government has “carefully considered” every regulation it has put in place, including the ban.
He added, “Along the way, there has been consultation with medical experts, various constituencies and different industries. We have been guided by international bodies and the experience of other countries.”