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Court dismisses FITA’s bid to lift cigarette sale ban with costs

The Pretoria high court has dismissed with costs an application by the Fair Trade Independent Tobacco Association (FITA) to have the government’s cigarette sales ban lifted.

In a judgement handed down on Friday, the court said FITA’s argument that cigarettes ought to have been considered essential because they are addictive has no merit.

“The fact that a substance is addictive does not render it essential. We therefore find no basis on which to interpret the level 5 regulations as permitting the sale of tobacco products,” Judge President Dunstan Mlambo said.

‘Protecting human life’

FITA moved to court in May after the government failed to lift the ban under level 4 of the lockdown. It cited President Cyril Ramaphosa and Cooperative Governance and Traditional Affairs (COGTA) Minister Dr Nkosazana Dlamini-Zuma as respondents.

The association argued that the government had not relied on any conclusive studies to show that the risk of COVID-19 hospitalisation was higher among smokers.

In her court papers, Dlamini-Zuma maintained that the ban is aimed at protecting human life and health while reducing the potential strain on the healthcare system.

She explained, “The Constitution imposes positive duties on the state to protect, promote and fulfil the rights in the Bill of Rights, including the right to life and the right to have access to healthcare services.

“From the studies that have been done so far, the evidence is that the use of tobacco products increases not only the risk of transmission of COVID-19, but also the risk of contracting a more severe form of the disease.”

This could in turn put additional strain on healthcare services because “smokers have higher ICU admissions, higher need for ventilation and a higher mortality rate than non-smokers,” the Minister added.

‘Rational connection’

Judge Mlambo said the court was persuaded by Dlamini-Zuma’s submission that FITA’s argument ignored the context under which level 5 regulations were promulgated.

“In our view, the necessity requirement is met once it is shown that there is a rational connection between the ban on tobacco sales and curbing the scourge of the COVID-19 virus in an attempt to prevent a strain on the country’s healthcare facilities, a finding which we have already made,” he said.

Reacting to the judgement, FITA chairperson Sinenhlanhla Mnguni said the association will “definitely appeal” it. The judgement also comes soon after a similar case, instituted by British American Tobacco (BAT SA), was postponed to August.

The hearing had initially been set for Tuesday, 30 June, but Western Cape Judge President John Hlophe issued a new directive on Friday following a government about-turn.

In a statement, BAT SA criticised the decision. “This delaying of justice and a resolution of this issue is inexplicable. By the time the case is heard, the ban will have been in place for four and half months, during which time billions of illegal cigarettes will have been sold,” it said.

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