None of the grounds for appeal the Fair-Trade Independent Tobacco Association (Fita) has put forward bear any reasonable prospects for success, a lawyer representing the government has argued.

Fita is seeking leave to appeal against a Pretoria high court ruling that dismissed its challenge of the ban on the sale of tobacco products.

Marumo Moerane SC, for the state, argued in a virtual hearing on Wednesday that Fita’s application had not met the tests for leave to appeal.

“The minister [co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma] has done that which is reasonably necessary to save lives and fulfil her constitutional obligations,” Moerane argued.

He said measures that served to reduce the strain on the country's health-care system must be considered to be “strictly necessary”.

“Measures that serve to reduce the strain on the health-care system are, in the situation in which we find ourselves, not 'nice-to-haves'. They are strictly necessary if the country is to come through this pandemic intact,” Moerane argued.

“Any measure that serves to reduce the strain on the health-care system is, we submit, a measure strictly necessary to contain and minimise the effects of the pandemic, and to protect the public. As this court held, the tobacco ban does serve to reduce the strain on the system.”

He said the ban on the sale of cigarettes was “strictly” necessary to protect the public.

“Therefore, even if Fita succeeds in persuading another court to adopt a different interpretation of 'necessary', there is still no prospect that this court’s order will be overturned.”

For Fita to succeed it would have to persuade an appeal court to “entirely” rewrite the established rationality test, Moerane argued. “There is no reasonable prospect that an appeal court would do so. Leave to appeal on this ground should therefore be refused.”

Fita’s application, Moerane argued, was aimed at protecting the financial interests of its members to be allowed to trade.

“We submit that this court rightly held that the decisions to promulgate regulations 27 and 45 were rational.”

The court, Moerane said, was correct to hold that the medical material and other reports provided the minister with a firm rational basis to promulgate the impugned regulations. According to Moerane, there was clear evidence that smokers were at heightened risk of developing a more severe form of Covid-19.

“Fita’s assertion that the evidence is 'inconclusive' is completely unfounded,” he said.

Arguing about the illicit trade in tobacco products, Moerane said the court was correct to find that the fact that not all smokers had stopped smoking did not render the decision to ban the sale of tobacco products irrational or unnecessary.

“The test is not whether the prohibition is the best means possible to achieve the objective. It is rather whether the chosen means, being the prohibition, could rationally achieve the objective,” said Moerane.

Judge president Dunstan Mlambo reserved judgment.

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