Tobacco manufacturers have labelled the state's ban on the sale of cigarettes "unlawful" because it was not gazetted under lockdown level 5 rules and no rational basis has been provided for the ban.

Fair Trade Independent Tobacco Association (Fita) filed court papers in the North Gauteng High Court in Pretoria yesterday, challenging the ban during lockdown level 4, citing an omission of such prohibition of trade in the provisions of the initial laws established in terms of the National Disaster Act.

Fita asked that, if health was a factor, why was there no prohibition on unhealthy goods such as junk food, chocolates, fizzy drinks and sweets.

It said the items had been associated with illnesses that leads to death but had not been banned. Fita, which represents eight cigarette manufacturers, also questioned the source of the state's power to prohibit the sale of cigarettes.

They put the blame squarely on cooperative governance minister Nkosazana Dlamini-Zuma as the person allegedly behind the government's move to ban cigarette sales.

Dlamini-Zuma is cited in the court papers alongside President Cyril Ramaphosa.

Fita wants the court to force the government to, among others, lift the ban on cigarettes and other tobacco products.

Fita chairperson Sinenhlanhla Mnguni, in his affidavit, singled out Dlamini-Zuma, citing her tenure as health minister between 1994 and 1999 that "she spearheaded legislation that eventually banned smoking in public places, prohibited all forms of tobacco advertising and promotion and recommended penalties for transgressors".

Mnguni also argued that initial regulations promulgated by Dlamini-Zuma did not contain an express provision prohibiting the sale of cigarettes or tobacco. "Despite this, several ministers, among them the second respondent (Dlamini-Zuma), and/or their spokespersons, have publicly stated that the sale of cigarettes was prohibited during the level 5 lockdown. It is important to emphasise that in most cases, the pronouncements were made in response to direct queries about the sale of cigarettes," he argued.

"None of the ministers, most importantly the minister of health, Dr Zweli Mkhize, had demonstrated how a prohibition on the sale of cigarettes
assists in preventing or reducing the spread of covid-19."

He requested access to minutes of the national command council's meeting after Ramaphosa had told the nation that the sale of cigarettes would be allowed under level 4.

Dlamini-Zuma's spokesperson Lungi Mtshali said: "The case is against government not the minister as an individual in her personal capacity. This [ban on cigarette sales] is the decision of the national command council as the president outlined earlier."

British American Tobacco South Africa (Batsa) had also given the government until 10am yesterday to give clarity on the decision to continue
imposing the ban on cigarette sales or face legal action.

Ramaphosa addressed the matter in his weekly online newsletter, defending Dlamini-Zuma, saying the decision on the ban on tobacco sales was a collective decision.

"A decision like this is bound to be controversial, but it is wrong to suggest that there are ministers or a president doing and saying whatever they want on this matter," Ramaphosa said.

"On 23 April, I announced that cigarette sales would be permitted during level 4. This was based on the view of the national coronavirus command council (NCCC), and which was contained in the draft framework that was published for consultation. After careful consideration and discussion, the NCCC reconsidered its position on tobacco."

Meanwhile, the SA Informal Traders Alliance which represents hawkers, spaza shop owners and home-based operators across all nine provinces, expressed its alarm at the decision to extend the ban.

But the National Council Against Smoking welcomed the decision to uphold the ban on tobacco sales, saying there is an increasing body of evidence showing that smokers who contract Covid-19 experience more severe disease progression than non-smokers.