The Fair Trade Independent Tobacco Association (FITA) has filed an appeal against the recent Pretoria high court ruling that upheld the controversial cigarette sales ban.
In a statement on Friday, FITA said the ruling is “riddled with legal and factual errors,” adding that the ban is not rational in South Africa’s fight against COVID-19.
It said, “The court erred in not finding that the ban is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time, they will cease to be smokers.”
In the judgement handed down on 26 June, 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.
The court was persuaded by Cooperative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini-Zuma’s submission that FITA’s argument ignored the context under which level 5 regulations were promulgated, Mlambo added.
“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.
Impact on fight against virus
In its statement, however, FITA said the court did not consider the question of “whether there is evidence that stopping the sale of cigarettes or tobacco products for a limited period of time will have any impact on the fight against the spread or the containment of the virus.”
It argued that the medical literature Dlamini-Zuma cited in her papers did not support the ban because it did not show that smokers had quit as a result of the ban. Further, the literature did not prove that the ban had eased the strain on the public healthcare system.
FITA’s court case is separate from another one filed by British American Tobacco SA (BAT SA) and others at the Western Cape high court, which is set to hear it in August.
The news comes as a group calling itself Dear Mr President plans to hold a protest against the ban at the Union Buildings on Saturday (4 July).
The group’s founder, Nj Hourquebie, said, “For 90 days, the government has chosen to ignore the voices of a large population under the guise of ‘protecting our fragile health system.’ The National Command council has chosen to base their decision on flawed science. They don’t care about us.”